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LIBRARY  OF  THE 

UNIVERSITY  OF  ILLINOIS 

AT  URBANA-CHAMPAIGN 

IN  MEMORY  OF 

STEWART  S.  HOWE 

JOURNALISM  CLASS  OF  1928 

STEWART  S.  HOWE  FOUNDATION 


B       . 
C366C 
cop  o   3 


I  .H.S 


^rcA,^^  ^\/?  o^^-^^iPi^^Z^ 


EARLY 


BENCH    AND    BAE 


OF 


ILLINOIS. 


BY 

JOHN  DEAN  CATON, 

Ex-Chief  Jiutice  of  Illinois ;  author  of  "  The  Antelope  and  Deer 

of    America;"    "A    Summer   in    Norway;" 

"  Miscellanies,"  etc. 


CHICAGO: 

FriNTED   BY   THE   CHICAGO   LEGAL   NEWS   COMPANY,  97   CLARK    STREET 

1693 


PREFACE. 


Some  years  ago  Avlien  in  social  conversation  with  two 
gentlemen  of  the  Bar,  I  was  relating  some  professional  inci- 
dents which  had  occurred  many  years  before,  when  one  of 
them  suggested  that  it  would  be  interesting  to  the  profes- 
sion of  the  present  day  if  I  would  note  down  events  which 
had  occurred  in  the  early  times  and  lay  them  before  the 
public;  I  ])romised  to  do  so,  and  the  result  was  a.  series  of 
articles  published  in  the  Chicago  Legal  News.  Upon  their 
publication  I  received  many  letters  from  gentlemen  of  the 
Bar  in  various  parts  of  the  State,  expressing  the  hope  that 
the  articles  might  be  republished  in  book  form.  I  finally 
revised  these  articles  and  prepared  them  for  the  press,  with 
several  new  papers  which  have  not  been  previousl}^  pub- 
lished, and  placed  them  in  the  hands  of  the  printer,  thinking 
that  many  incidents  and  some  j^eculiarities  of  former  times 
might  be  thus  perpetuated,  which  may  in  still  later  times  be 
considered  worth  remembering.  I  do  this  the  more  readily 
as  I  am  probably  the  only  man  now  living  who  can  speak 
from  personal  observations  and  recollections  of  events  of 
fifty  years  and  more  ago. 

In  the  Appendix  I  have  given  an  address  delivered  before 
the  State  Bar  Association  on  the  24th  of  January  last,  and 
another  given  before  the  Chicago  Bar  Association  Fel^ruary 
11,  1S93,  in  which  will  be  found  some  statements  germane 
to  the  subject,  not  previously  given. 

1900  Calumet  Ave.,  Cuicago,  April  26,  1893. 


I 


INDEX. 


I.  My  First  Client.  page. 

Hoosier  Peculiai"ities — Prosecuting  a  Thief — First    Criminal 
Case  in  Cook  County 1 

II.  My  Second  Client. 

The  First  Civil  Case  tried  in  Cook  Coiuity 12 

III.  My  First  Marriage  Ceremony. 

A  French  Couple 16 

IV.  My  Second  Marriage  Ceremony. 

Life  in  the  Early  Days 19 

V.  Another  Connubial  event. 

Life  in  the  Country — ^A  Wedding  Dinner 23 

VI.  Another  Conntjbl^l  Event. 

Reflections — Reminiscences 30 

VII.  Circuit  Scenes. 

I.  The  first  Term  of  Circuit  Court  in  Cook  County — Fii-st  Trial 

for  Murder  in  Cook  County — Defends  a  Thief  in  Will 
County — First  Jury  Trial  in    Kane  County     ....     38 

II.  Practice  in  Early  Days — Following    the    Circuit — Itiner- 

ancy— Incidents 50 

III.  Trial  of  a  Murderer 55 

IV.  Circuit  Court  held  by  Three  Justices  of  the  Peace — The 

Lead-Miners — Stories  of  Bench  and  Bar 58 

V.  Practice  in  Another  County — Defense  of  One  Accused  of 

Theft 62 

VI.  Chancery    Suits — Suits    against    Colonel    Strawn— Early 

Days  on  the  Bench 78 

VII.  Reformation  of    the  Supreme    Court — Election    of    New 

Judges — Elected  as  Judge  of  the  Supreme  Court      .      .     90 

viii.  Lynch  Law — Punishment  of  Offenders 95 

IX.  Incidents  of    Trials 99 

X.  Stories  and  Incidents  of  Trials 106 

(V) 


VI  INDEX. 

PAGE. 

XI.  Life    on   the  Circuit 113 

XII.    Trial  of  Mr.   Lovejoy 121 

XIII.    Anti-slavery  Times  in   Illinois 137 

XIV.  Trial   of  Phillips  for    Murder 135 

XV.  Civil  Trials 145 

VIII.  The  Conference  Room. 

I.  The  Difficulties  of  Early  Travel— Luck  for  Place— Trip  to 

Mt.  Vernon 153 

II.  Service   on  the  Supreme  Bench — Scenes  in   the  Conference 

Room 162 

III.  The  Judges  of   the  Supreme  Court ITO 

IV.  Salaries  of  tlie  Judges — History  of  the  Court  from  the   Be- 

ginning— Hardships  of  Travel  in  Attending  Court  .  .181 
V.  Anecdotes  of  Lincoln   and   Others  -Stories   of   Celebrated 

Trials • 1S4 

VI.  Appointment  of  Pinckney  H.  Walker  as  Judge— Sketch  of 

his  Life 191 

IX.  Reporters  of  the  Supreme  Court  . 

Salaries — Labors— Personal    Mention 204 

X.  The  Frailty  of  Human  Memory. 

Personal  Incident 208 

Appendix: 

1.  Address  before  the  State  Bar  Association,  January  24th, 

1893 215 

II.  Address  before  the  Chicago  Bar  Association,  at  a  reception 

given  him  by  the  Association,  February  11th,  1893     .      .   239 
III.  The  Exodus  of  the  Mormons  to  Salt  Lake 249 


PORTRAITS. 


John  Dean  Caton 


Sidney  Breese  .  . 
Samuel  H.  Treat  . 
David  Davis  .  .  . 
Lyman  Trumbull  . 
Burton  C.  Cook  .  . 
Benjajiin  F.  Fridley 
GusTAvrs  Koerner  . 
Anthony  Thornton 
T.  Lyle   Dicicey     . 


64 
90 
92 
94 

101 
106 
116 
136 

147 


.  Fi'ontispiece. 
Charles  B.  Lawrence  . 
Samuel  D.  Lockwood  . 
Thomas  C.  Browne  .  . 
Onias  C.  Skinner  .  . 
PiNKNEY  H.  Walker  . 
Corydon  Beckwith  .  . 
Jonathan  Young  Scammon 
Ebexezer  Peck  .  .  . 
Norman  L.  Freeman    . 


.  152 
.  170 
.  173 
.  184 
.  191 
.  194 
.  205 
.  206 
.  207 


EARLY  BENCH  AND  BAR 
OF  ILLINOIS. 


I. 

MY  FIEST  CLIENT. 


I  arrived  in  Chicago  on  the  19th  of  June,  1833,  with  four- 
teen dollars  and  some  cents  in  my  pocket,  and  stopped  the 
first  night  at  the  log  tavern  at  Wolf  Point,  kept  by  W.  W. 
Wattles.  The  next  day  I  took  lodging  with  Dexter  Graves, 
who  kept  boarders  at  five  dollars  per  week  in  a  log  house  just 
north  of  Lake  and  east  of  Dearborn  streets.  There  I  found 
Giles  Spring,  a  young  lawyer  who  had  arrived  a  few  days 
before  me,  but  he  had  seen  no  sign  of  professional  business. 
I  went  over  the  river  to  the  north  side  to  the  office  of  Col. 
R.  I,  Hamilton,  which  was  in  a  log  building,  a  part  of  which 
was  occupied  by  his  family.  He  was  the  clerk  of  the  Cir- 
cuit Court,  and  of  the  County  Commissioners'  Court  and 
Judge  of  Probate.  Neither  Spring  nor  myself  could  find  a 
room  for  an  office,  nor  was  it  possible  to  do  so  till  the  Decem- 
ber following,  when  Dr.  John  T.  Temple  erected  a  small 
balloon  building,  for  his  own  office,  on  South  Water  street 
west  of  Franklin.  In  this  there  were  two  lower  rooms,  the 
rear  one  of  which  he  rented  to  me  for  an  office.  As  Spring 
could  find  no  place  where  he  could  take  a  client  in — out  of  the 
cold,  I  mean— I  offered  him  desk  room  in  my  office  which 
he  gladly  accepted,  it  being  agreed  that  when  one  had  a 
client  the  other  should  withdraw.     This  \vas  the  first  law 


2  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

oiRce  ever  opened  in  Chicago.     For  a  library  he  had  Peters 
dorf  s  Abridgment  and  I  had  Chitty's  Pleadings. 
Let  us  no\y  go  back  to  the  beginning. 
Col.  Hamilton  very  kindly  oflfered  us  the  use  of  his  office 
when  we  should  have  writing  to  do  or  wished  to  study  the 
Statutes  of  1833,  a  copy  of  Avhich  he  had.     I  spent  several 
days  diligently  studying  that  good  old  book.     What  struck 
me  as  the  worst  part  of  it  Avas  that  it  gave  no  fees  to  the  at- 
torney of  the  successful  party   against  the   party   in  the 
wrong. 

Col.  Hamilton  was  a  very  good  lawyer  and  so  was  Pussell 
E.  Heacock,  who  had  practiced  law  for  many  years  in  the 
southern  part  of  the  State,  but  there  being  no  business  here 
for  a  lawj^er,  he  had  built  a  log  carpenters  shop  at  the  cor- 
ner of  State  and  South  Water  street,  where  he  worked  at 
the  trade  which  he  had  learned  before  he  studied  law.  He 
also  held  the  office  of  justice  of  the  peace.  The  rest  of  the 
judicial  force  of  Chicago  consisted  of  Isaac  Harmon,  who 
lived  in  Miller's  tannery,  •  on  the  ISTorth  Side,  and  had  his 
office  in  one  room,  and  Archibald  Cly  bourn,  who  lived  two 
miles  up  the  North  Branch.  Stephen  Forbes  was  sheriff 
and  lived  at  Lauton's  crossing  opposite  to  where  Riverside 
now  is. 

Well,  here  I  had  been  tAvo  weeks  boarding  with  Dexter 
Graves,  at  five  dollars  per  week,  and  no  sign  of  any  sort  of 
law  business. 

My  board  bill  must  now  be  paid,  and  that,  with  a  few 
other  stingy  expenditures,  would  bankru])t  my  treasury.  I 
began  to  think  that  after  all  Chicago  was  a  better  place  to 
starve  in  than  to  make  a  fortune.  At  any  rate,  it  was  too 
honest  and  too  peaceable  to  need  a  lawyer's  services,  or,  in 
fact,  for  any  great  cit}^ 

After  I  had  eaten  a  supper  that  I  did  not  know  I  should 
ever  be  able  to  pay  for,  in  a  rather  dejected  mood  I  wandered 
out  to  a  Hoosier  encampment  in  the  border  of  the  brush 
about  Avhere  Madison  street  is,  and  thence  southerly,  and 
joined  the  men  who  said  "  which  "  instead  of  ivhat.     These 


MY  FIRST  CLIENT.  3 

■were  men  who  came  from  the  AVabash  on  the  IIn])bar(l 
trail  antl  brought  their  truch  up  and  traded  for  salt.  They 
came  with  ox  teams  of  five  or  six  pairs  of  oxen  to  a  covered 
wagon,  in  which  they  lived  both  on  tlie  road  and  in  town. 
Their  oxen  were  grazmg  near  where  they  were  encamped, 
east  of  where  t)ie  Board  of  Trade  now  stands.  The  camp 
consisted  of  a  dozen  or  move  prairie  schooners,  their  camp 
fires  sparkling  in  the  darkness. 

The  Hoosiers  were  seated  on  their  ox  yokes  around  their 
fires,  cooking  their  suppers  of  fried  apples  and  bacon  and 
cold  corn  bread. 

As  I  came  from  the  sombre  background  and  approached 
the  nearest  camp  fire,  an  old  frontier  patriarch  who  seemed 
entitled  b}''  seniority  to  preside,  extended  his  hand  to  me 
with  a  hearty  good-day,  and  without  rising,  hitched  along 
on  the  ox  yoke  and  offered  me  a  seat  beside  him. 

"  Which  *  is  the  matter  3^oung  man, "  said  he,  "  you  are 
the  first  man  I  have  seen  near  tliis  neck  of  timber  Avho  was 
not  going  like  chain  lightning  though  I  haven't  hearn  tell 
that  they  struck  yet.  " 

"That's  what's  the  matter"  said  1,  "nobody  strikes,  but 
ever3^body  runs.  What  sort  of  a  chance  can  an  honest  law- 
yer have  in  such  a  place  ?  Here  I've  been  two  weeks  and 
not  the  ghost  of  a  fee.  They  talk  about  a  big  place  to  be 
here  and  nary  a  thief  or  counterfeiter  about.  Who  ever  heard 
of  any  smart  town  without  one  or  both  of  these  gentry  ?  " 
"  Hold  your  horses,  young  man,"  said  my  new  friend, 
"  where  they  sell  salt  for  a  dollar  a  bushel,  and  give  a  bit  a 
bushel  for  onions,  will  not  do  long  without  lawyers,  unless 
they  are   taken   to   the   other  side   of    kingdom-come  be- 

*  Soon  after  I  came  to  Chicago  an  article  appeared  in  a  Boston 
paper,  in  which  some  eastern  traveler  gave  a  description  of  what  he 
liad  noticed  in  and  about  Chicago,  and  he  seemed  to  have  been  par- 
ticularly struck  with  some  characteristics  of  these  Hoosiers  from  the 
Wabash,  who  brought  their  truck  by  these  long  ox  teams,  and  in 
speaking  of  this  particular  use  of  the  word  ivliicJi,  he  fell  into  doggerel 
and  said  of  the  Hoosior,  "  When  the  last  tinimii  shall  sound,  were  I  as 
Croesus  rich,  Td  give  it  all  to  see  him  jump,  and  loudly  answer '  which  ? ' " 


4  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

fore  their  time  is  up.  Xever  fear,  the  lawyers  and  the  devil 
have  a  smart  chance  ahead  and  not  long  neither,  unless  they 
stick  out  their  heel  corks  and  settle  back  into  the  breach- 
ing. These  yankees  that  are  coming  in  here  in  bigger  flocks 
than  the  locusts  that  eat  up  the  '  FUistevs,  hip  and  thigh,' 
will  be  stealing  corner  lots  and  running  off  with  'em  in  less 
nor  a  month  aiid  then  they  will  be  after  you  to  chase  'em. 
Chase  'em !  Why  them  fellows  will  slip  through  a  knot 
hole  where  you  could  not  squeeze  a  flaxseed.  But  they  will 
pay  you  all  the  same.  There's  your  hog  and  hominy  young- 
man." 

"  Yes,"  I  replied,  "  what  am  I  to  do  in  the  mean  time  ? 
I  must  eat  every  day  and  if  I  can  find  nothing  to  do  I  shall 
be  as  thin  as  a  ghost  in  less  than  two  weeks.  I  have  been  a 
school  master  in  my  day  and  was  reckoned  a  good  one  at 
that.  Do  they  have  schools  down  on  the  Wabash  where 
you  live  ?  " 

"  Well,"  said  he,  "  we  don't  have  schools  down  there  yet 
to  hurt,  but  they  are  beginning  to  talk  about  one,  I've  hearn 
tell,  and  maybe  that  would  do  for  a  makeshift.  Come  'round 
to-morrow  night  and  we'll  talk  it  over  again.  You  shan't 
go  hungry  while  ther's  a  shoat  in  the  bottoms  or  me'n  those 
boys  have  a  hunk  of  bacon  left." 

"  Hello,  Uncle  Jake !  "  shouted  a  voice  from  a  neighboring 
camp  fire  in  ringing  tones.  ^^  Which? ''^  inquired  my  new 
friend. 

"  What  are  you  wagging  your  chin  about  over  there  ?  " 
inquired  the  same  voice.  "  Oh,"  said  Uncle  Jake,  •'  here's  a 
young  feller  on  the  anxious  seat  relatin'  his  experience,  and 
it's  a  rather  hard  one.  He  arn't  a  yankee  nuther,  but  from 
old  Kentuck  or  may  be  Tennessee,  I  reckon.  He's  a  young 
lawyer  and  he  says  there  ha'nt  been  a  fight  or  a  horsethief 
in  this  burgh  yet,  and  he  don't  think  this'U  be  much  of  a 
town,  no  how." 

"  Never  you  mind,  tell  him,"  was  the  encouraging  reply, 
"  they'll  see  enough  of  them  'afore  long,  to  make  a  smart 
chance  of   a  toAvn,  and  make  the  lawyers  too,  I  reckon; 


MY  FIRST  CLIENT.  5 

mor'n  half  the  people  we  see  will  turn  that  way  'afore  they 
Jiave  a  church  in  the  place.  Then  there'll  be  heaps  of  Avork 
for  lawyers  good  and  bad." 

On  hearing  these  comforting  opinions,  I  arose  and  shook 
hands  with  Uncle  Jake  and  the  boys,  and  took  my  leave 
without  explaining  my  nativity,  for  they  deemed  all  from 
the  east  of  Ohio  yankees,  whom  they  considered  sharper 
but  no  more  honest  than  horsethieves  or  counterfeiters.  In 
my  conversation  I  had  avoided  the  Eastern  twang  and  had 
adopted  the  Southern  accent  and  pronunciati(m,  which  had 
misled  Uncle  Jake  in  his  conclusions  as  to  whence  I  came. 

I  could  not  fulfill  niv  engagement  to  call  the  next  niffht, 
for  I  was  professionally  engaged.  As  I  took  my  way  across 
the  prairie  toward  the  log  cabin  which  constituted  my  inn, 
and  crawled  into  my  bed  in  the  attic,  I  felt  encouraged  by 
the  kind  and  hopeful  suggestions  of  ray  new  found  Hoosier 
friends. 

The  next  morning  after  breakfast,  having  no  office  to  go 
to,  I  went  over  to  South  AVater  street,  to  see  what  new 
faces  would  show  themselves.  Presently  a  rather  short, 
stout  young  man  stepped  up  to  me  and  inquired  if  I  was  a, 
lawA'er.  This  inquiry  went  through  me  like  an  electric 
shock,  but  I  composed  myself  instantly,  and  answered  him 
that  I  was,  and  incjuired  if  I  could  be  of  any  service  to  him. 
He  replied  that  some  one  had  stolen  from  him  $46  of  Bel- 
lows Falls  money,  and  he  wanted  my  assistance  to  catch 
the  thief  and  recover  the  property. 

As  I  had  no  office  to  which  I  could  take  my  client  for  a 
private  consultation,  I  led  the  way  across  the  street  to  the 
bank  of  the  river,  where  we  seated  ourselves.  Then  he  in- 
formed me  that  he  had  slept  the  night  before  at  Wattles' 
tavern  in  a  room  with  another  young  man,  a  stranger,  and 
when  he  awoke  in  the  morning,  his  room  mate  and  his 
money  were  gone.  After  minute  inquiry  I  was  satisfied 
that  his  room  mate  was  the  thief. 

As  Mr.  Justice  Heacock  was  the  only  magistrate  on  the 


6         EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

south  side  of  the  river,  we  made  our  way  to  his  office,  or 
carpenter  shop,  as  the  case  might  be. 

I  got  the  statute,  and  using  his  carpenter's  bench  for  a 
table,  wrote  out  a  complaint  in  most  elaborate  form,  putting 
in  not  only  all  that  was  necessary,  but  a  good  deal  that  was 
not  necessary,  and  read  it  over  very  carefully  to  my  client 
and  the  justice,  who  then  swore  him  to  the  complaint  and 
made  out  a  warrant  for  the  arrest.  This  we  took  to  the  log- 
cabinet  shop  of  James  W.  Reed,  situate  on  South  Water 
street  between  Franklin  and  Wells.  Eeed  was  the  constable 
of  the  town,  a  stout,  vigorous  man  of  about  thirty  years 
of  age,  and  the  only  cabinet  maker  in  the  place. 

We  all  started  out  in  a  search  of  our  man  and  for  a  long 
time  could  get  no  trace  of  him  and  feared  he  had  taken  to 
the  woods  or  to  the  prairies.  In  an  hour  everybody  had 
heard  of  the  theft  with  the  usual  exaggerations,  and  nearly 
everybody  became  a  quasi  detective.  Toward  night.  Reed 
got  a  pointer  and  soon  ran  his  man  to  earth  and  marched 
him  down  to  the  carpenter's  shop — the  justice's  office— fol- 
lowed by  a  crowd  which  fairly  filled  it. 

Justice  Heacock  took  his  seat  on  a  saw  horse  beside  the 
carpenter's  bench,  on  which  was  lighted  a  single  tallow  dip, 
supported  by  four  nails  driven  into  a  block  of  wood,  and 
opened  his  docket  and  called  the  case  in  a  very  formal  man- 
ner. I  answered  for  the  peo]3le.  and  the  prisoner  for  him- 
self, and  pleaded  not  guilty  in  a  very  emphatic  tone.  I  then 
propc^sed  that  the  constable  search  the  ])risoner  for  the 
stolen  money,  which  was  ordered  by  the  court,  and  duly  en- 
tered on  the  docket.  Of  course  I  assisted,  and  the  court 
solemnly  looked  on,  while  the  crowd  pressed  around  curi- 
ously, if  not  anxiously.  All  the  pockets  were  turned  inside 
out,  but  no  Bellows  Falls  money  was  found.  The  prisoner 
was  then  stripped  to  his  shirt  and  long  stockings,  but 
nothing  that  we  were  after  was  found.  The  feeling  of  the 
crowd  was  evidently  swaying  in  favor  of  the  young  man, 
and  the  court  showed  decided  signs  of  weakening,  and  in  an 
emphatic  tone   ordered   him   to  put   on    his   clothes.     He 


MY  FIRST  CLIENT.  7 

seized  liis  pants  and  as  lie  raised  his  right  foot  to  introduce 
it  into  the  outer  fi:arment,  the  calf  of  his  rig-ht  leg-  was 
brought  into  distinct  vie^y  in  the  dim  light,  when  my  eye 
caught  a  little  bunch  on  the  swell  of  the  leg.  I  quickly 
seized  this  between  my  thumb  and  forefinger  and  fastened 
to  it,  and  probably  some  of  the  skin  as  well,  and  told  the 
constable  to  carefully  roll  down  the  stocking  and  see  what 
was  there.  He  did  so,  and  took  out  a  little  wad  of  bank 
bills,  which  he  handed  to  the  court  with  an  expression  of 
triumphant  satisfaction.  The  court  received  the  little  wad 
and  carefully  unrolled  it  till  it  developed  $46  of  Bellows 
Falls  money. 

A  murmur  of  excitement  ran  through  the  crowd,  while 
the  justice  in  a  severe  tone  said  :  ''  Young  man,  this  looks 
suspicious  and  requires  further  investigation."  I  think  the 
prisoner  and  myself  felt  the  strongest  revulsion  of  feeling, 
but  in  quite  opposite  directions — he  from  hope  to  despair, 
and  I  from  despair  to  confident  belief  that  I  had  the  right 
man. 

It  was  now  past  9  o'clock,  and  the  court  announced  an 
adjournment  till  9  the  next  morning,  that  the  examination 
might  be  made  thorough  and  deliberate,  and  ordered  the 
constable  to  keep  the  prisoner  safely  till  morning,  and  then 
bring  him  into  court. 

As  there  was  no  jail  in  the  county,  Mr.  Reed  took  his 
prisoner  to  his  cabinet  shop,  where  he  ordered  him  to  lie 
down  on  a  pile  of  shavings  under  the  work  bench,  when  he 
secured  the  door  and  windows  and  seated  himself  to  watch 
the  night  through.  For  myself,  I  retired  feeling  immensely 
satisfied  at  the  change  the  day  had  wrought  in  my  hopes 
and  prospects. 

The  next  morning  all  hands  appeared  promptly  at  the  log 
carpenter's  shop  or  justice's  office,  where  Mr.  Spring  and  Col- 
onel Hamilton  appeared  for  the  prisoner.  They  filed  an  aifida- 
vit  under  the  statute  for  a  change  of  venue,  which,  of  course, 
had  to  be  granted,  and  as  soon  as  the  proper  pa])ers  could  be 
made  out,  Mr.  Justice  Heacock  took  them  and  started  for 


8  •     EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  office  of  Mr.  Justice  Isaac  Harmon,  who  was  the  nearest 
justice.  He  lived  and  had  his  office,  as  before  stated,  in  a 
part  of  John  Miller's  tannery,  which  was  east  of  the  North 
Branch  and  north  of  the  main  river  near  their  junction. 
There  was  no  bridge  across  the  main  river,  but  cnvc  across 
each  of  its  branches  not  far  above  their  junction.  To  go  b}^ 
these  bridges  would  nearly  double  the  distance,  so  those  of 
us  connected  with  the  case  took  canoes  and  crossed  the 
main  river  to  the  north  side,  near  where  Dearborn  street  is, 
and  then  went  on  foot  up  to  the  justice's  office,  where  the 
papers  were  delivered  over  in  due  form,  thus  vesting  Mr. 
Justice  Harmon  with  jurisdiction  of  the  case.  In  the  mean- 
time, there  only  being  canoes  enough  at  Dole's  dock  to  trans- 
port the  court  party  over,  the  spectators  hastened  around 
by  way  of  the  bridges,  and  the  string  of  hastening  men 
(there  were  very  few  boys  in  town)  showed  that  the  trial 
was  looked  upon  as  a  great  event,  in  the  hitherto  innocent 
but  bustling  town. 

"When  the  court  was  opened  Spring  made  a  motion  to 
quash  the  whole  proceeding  and  discharge  the  prisoner  on 
the  ground  of  insufficiency  of  the  complaint  and  made  a 
most  earnest  and  zealous  speech  in  support  of  his  motion. 
Xow  Spring  could  make  just  as  earnest  and  confident  a 
speech  when  he  knew  he  was  wrong  as  when  he  thought  he 
was  right.  He  certainly  manifested  no  doubt  or  misgiving 
as  to  the  correctness  of  his  position,  and  fairly  raved  at  the 
monstrous  outrage  upon  the  young  man  by  detaining  him 
for  a  moment  on  such  papers,  and  confidenth'  claimed  that 
the  mone}',  of  which  we  had  fairly  robbed  him,  should  be 
restored.  All  of  this  served  to  prepare  me  well  for  a  speech 
in  support  of  my  complaint,  and  I  already  congratulated 
myself  upon  the  complete  manner  in  which  I  should  expose 
the  fallac}^  of  Spring's  position,  but  my  client  seemed  evi- 
dentl}^  impressed  b}^  his  confident  earnestness  and  looked  a 
little  anxious. 

The  moment  Spring  closed,  I  jumped  to  my  feet  primed 
to  overflowing  to  do  battle  for  my  complaint,  when  the 


MY  FIRST  CLIENT.  9 

court  quietly  said  he  thought  that  tlie  com]ihiint  was  suffi- 
cient and  so  I  need  not  trouble  myself,  and  overruled  the 
motion. 

By  this  time  it  was  nearh''  noon  and  some  one,  I  think  the 
justice  himself,  suggested  as  his  office  was  small  and  a  con- 
siderable public  interest  was  manifested  in  the  examination, 
the  further  hearing  was  adjourned  to  Wattles'  tavern,  where 
the  proceedings  would  be  continued  after  dinner. 

Soon  after  one  o'clock,  the  court  was  convened  under  the 
porch  of  the  log  tavern,  a  deal  table  supporting  the  open 
docket  of  the  justice,  whose  dignity  was  held  up  by  a 
Windsor  chair.  The  crowd  was  considerably  augmented, 
many  in  their  shirt  sleeves,  for  it  was  a  warm  July  day,  and 
all  were  clad  in  as  light  costume  as  comported  with  the 
dignit}^  of  the  occasion.  I  was  directed  to  call  m v  witnesses, 
and  Mr.  Hatch,  the  complainant,  was  sworn.  He  gave  his 
statement  as  before  related,  together  with  the  account  of  the 
finding  of  the  money,  which  he  identified.  Eied,  the  con- 
stable, gave  an  account  of  his  search  for  the  prisoner  and  of 
his  search  of  him,  and  of  the  finding  of  the  money  inside 
his  stocking. 

The  cross-examination  of  the  witnesses  was  much  longer 
than  the  direct,  but,  as  is  ver}^  often  the  case,  it  strength- 
ened their  direct  testimony.  I  may  say  here  that  more 
cases  are  ruined  by  too  much  cross-examination  than  by  too 
little.  I  have  often  seen  a  doubtful  case  made  clear  by  what 
was  intended  to  be  a  crushing  cross-examination.  If  a  wit- 
ness is  intelligent  and  reasonably  self-possessed,  and  means 
to  tell  the  truth,  an  attempt  to  break  him  down  by  a  bluster- 
ing cross-examination  will  often  develop  damaging  facts 
which  are  brought  to  his  attention,  and  so  I  have  often  seen 
cases  ruined  by  too  much  cross-examination.  I  always  made 
it  a  rule  to  prove  my  case  in  the  shortest  and  most  direct 
way  possible,  and  then  stop.  If  it  is  to  be  strengthened  by 
collateral  circumstances,  it  is  much  better  to  let  them  be 
brought  out  on  the  cross-examination  than  on  the  direct. 
No  evidence  Avas  introduced  for  the  prisoner. 

After  the  testimony  was  closed  I  opened  the  case  in  a 


10       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

short  speech  when  Spring  went  in  for  a  grand  effort  in  his 
earnest,  confident  manner  and  was  followed  by  Col.  Hamil- 
ton, in  a  less  nervous,  but  more  deliberate  manner,  and  con- 
sidering that  they  really  had  no  defense  to  make  but  could 
only  try  to  create  a  sympathy  for  the  young  man,  their  ef- 
forts were  excellent.  Spring  had  got  in  the  first  speech  in 
the  mornino-  before  a  Chicag-o  audience  and  now  had  made 
a  fine  effort  in  which  he  liad  scored  several  points  for  him- 
self, if  not  for  his  client;  I  felt  that  I  must  do  my  best  or 
rank  number  two  in  the  very  start.  I  went  at  it  in  earnest, 
reviewing  the  evidence  and  showino^  its  conclusive  character 
and  then  took  up  the  sjaiipathy  part,  pointing  out  that  it 
must  be  the  Inst  resort  of  manifest  guilt.  That  if  this  was 
his  first  offense  it  was  the  part  of  true  sympathy  to  nip  his 
career  of  crime  in  the  bud,  rather  than  to  encourage  him  to 
commit  further  crime  by  giving  him  immunity  for  tliis. 
That  the  community  had  greater  claims  upon  our  sympa- 
thies to  be  protected  from  the  depredations  of  thieves  than 
any  acknowledged  thief  could  have,  and  pointed  out  the 
great  importance  of  proclaiming  to  the  whole  criminal  class 
that  Chicago  was  an  unwholesome  place  in  which  to 
practice  their  arts.  That  the  courts  must  take  the  respon- 
sibility of  determining  whether  Chicago  was  to  become  a  den 
of  thieves  or  an  honest  community  where  life  and  property 
were  to  be  protected  by  a  rigorous  administration  of  the 
law.  I  drew  a  picture  of  Chicago  in  the  future,  if  the 
courts  b}^  their  decision  should  make  it  a  refuge  for 
criminals,  and  Chicago  purged  of  crime  by  a  relentless  ad-, 
ministration  by  the  Criminal  Courts.  It  was  for  his  Honor 
now  to  determine  which  class  of  immigrants  were  to  be  in- 
vited to  come  in,  the  good  or  the  bad.  I  dwelt  upon  this 
theme  in  all  its  phases,  at  considerable  length,  and  when  I 
sat  down  I  felt  in  the  very  atmosphere  that  I  had  struck 
the  right  chord  and  had  achieved  a  complete  success.  By 
praising  the  strenuous  and  ingenious  efforts  of  my  op- 
ponents in  so  desperate  a  case,  I  detracted  nothing  from 
mv  own  success. 


MY  FIRST  CLIENT.  1 1 

This  wr.s  tlio  opening  career  of  the  two  first  practicing- 
lawyers  in  Chicago,  and  the  people  had  manifested  a  decided 
interest  to  know  whether  we  were  likely  to  prove  a  success 
or  not,  and  we  both  felt  gratified  at  their  manifest  ap- 
proval. 

The  court,  without  reviewing  the  evidence  or  the  arg-u- 
inents,  promptly  held  the  defendant  to  answer  in  the 
Circuit  Court.  It  turned  out  that  he  had  several  friends  in 
town  who  probably  knew  him  or  his  family  at  the  East  and 
who  went  his  bail,  and  he  was  thus  discharged  from  the 
custody  of  Constable  Reed.  He  never  appeared  in  Chicago 
again,  so  far  as  I  know. 

Mr.  Justice  Harmon  promptly  sent  the  papers  to  the  office 
of  the  clerk  of  the  Circuit  Court. 

Col.  Hamilton  entered  u])on  the  records  the  case  of 
the  people  against  his  own  client,  which  was  the  first  case 
ever  entered  u])on  the  records  of  the  Circuit  Court  of  Cook 
County.  Mr.  Hatch  very  cheerfully  paid  me  ten  dollars  of 
the  recovered  money,  which  just  paid  my  board  up  to  that 
time.  Although  small  in  amount,  it  was  the  greatest  fee  I 
ever  earned  (and  I  have  received  some  good  ones  in  my  day) 
if  measured  by  the  amount  of  good  it  did  me.  The  bright 
spots  in  my  horizon,  lately  so  dark,  now  shown  like  a  firma- 
ment of  stars. 

The  second  case  also  came  to  me,  of  which  I  will  give  an 
account  hereafter,  the  incidents  of  which  were  a  little  funny 
and  more  unique  than  the  first.  Just  before  the  great  fire 
of  1871,  which  consumed  all  of  the  old  records,  with  two 
friends,  JN'orman  Williams,  Esq.,  and  C.  E.  Towne,  Esq.,  I 
examined  the  old  records  and  found  the  ]iapers,  and  as  I 
recollected  they  were  the  two  first  ever  entered  there. 

Tliis  case  then  passed  into  the  hands  of  the  State's  Attor- 
ney, Thomas  Ford,  who  was  afterward  judge  of  the  Munic- 
ipal Court,  of  the  Circuit  Court,  of  the  Supreme  Court,  and 
then  Governor  of  the  State;  nine  years  later  I  succeeded 
him  as  judge  of  the  Supreme  Court. 

Later  Spring  presided  on  the  Circuit  bench  in  Chicago 
most  acceptably. 


II. 

MY  SECOND  CLIENT. 
THE    FIRST    CIVIL    CASE    TRIED    IN    COOK    COUNTY. 

Perhaps  ten  clays  after  Spring  and  myself  had  intro- 
duced ourselves  to  the  little  public  of  Chicago,  as  stated  in 
"  My  First  Client,"  I  obtained  my  second  client,  which  will 
make  a  shorter  story  than  the  first.  In  the  meantime  I 
had  earned  a  few  dollars  posting  books  for  Robert  A. 
Kinzie.  .  Ready  to  earn  a  little  outside  the  profession,  both 
Spring  and  myself  had  undertaken  to  carry  the  chain  for 
Josh  Hathaway,  who  had  come  to  Chicago  with  me  and  had 
been  given  a  small  job  of  surveying  by  Geo.  W.  Snow,  who 
was  deputy  county  surveyor. 

Josh  had  thoroughly  studied  surveying  theoreticnlly,  but 
had  never  set  a  compass,  while  I  had  some  practical  knowl- 
edge of  the  subject,  having  executed  several  jobs  to  earn  a 
little  in  my  school  days.  So  it  was  agreed  between  us  that 
he  should  hold  himself  out  as  a  surveyor  without  advising 
tlie  public  of  his  want  of  practice,  and  that  when  he  got  a 
job  I  would  go  along  to  carry  the  hind  end  of  the  chain  and 
quietly  give  him  any  instructions  he  might  need  in  starting. 
Spring  was  glad  to  go  along  to  carry  the  fore  end  of  the 
chain  for  he  seemed  as  glad  to  earn  a  dollar  as  I  was. 

We  found  our  starting  point,  perhaps  a  mile  north  of 
town,  east  of  the  North  Branch,  in  the  timber,  and  ran 
north.  The  line  soon  ran  us  into  an  alder  swamp,  and  a 
denser  one  I  never  saw. 

Every  foot  of  the  way  had  to  be  cleared  by  the  ax-men, 
so  it  was  very  slow  work.     At  noon  we  came  back  to  towij 

(13) 


MY  SECOND  CLIENT.  13 

for  our  dinners,  and  as  we  passed  the  clerk's  office  on  our 
Avay,  Col.  Hamilton  came  out  and  told  us  that  a  man  had 
been  in  his  office  who  wanted  to  bring  an  action  in  attach- 
ment. That  he  had  told  him  he  must  get  a  law3'er  to  draw 
his  papers.  That  he  had  gone  away  but  would  be  back  in 
the  afternoon.  We  both  wanted  the  case,  of  course,  but 
agreed  that  we  would  eat  our  dinners  and  return  to  our 
work  and  the  Colonel  was  to  send  the  client  after  us  and  we 
would  trust  to  luck  as  to  which  he  would  come  upon  first, 
who,  of  course,  would  get  the  case. 

We  told  the  Colonel  that  we  would  be  found  in  that  alder 
swamp,  to  which  he  was  to  direct  the  client.  I  thought  that 
my  position  at  the  hind  end  of  the  chain  would  give  me  the 
advantage,  for  the  man  would  most  likely  strike  our  trail 
where  we  entered  the  swamps,  and  so  must  necessarily  fol- 
low it  up  and  come  upon  me  first.  I  dare  not,  however, 
tell  the  Colonel  to  advise  him  to  look  for  the  trail  along  the 
edge  of  the  swamp,  for  that  would  have  at  once  disclosed 
my  fancied  advantage. 

We  Avent  back  to  our  work,  but  made  very  slow  progress 
in  the  dense  thicket,  all  being  idle  most  of  the  time  except 
the  ax-men,  whose  constant  blows  could  be  heard  at  a  con- 
siderable distance,  and  I  imagine  that  Spring  confidently 
calculated  upon  this  as  giving  him  the  advantage,  but  he 
kept  his  thoughts  to  himself  as  well. 

So  soon  as  the  ax-men  had  cleared  the  way  sufficiently  to 
let  us  advance  one  chain  we  did  so  and  then  sat  down  to 
wait.  While  thus  sitting  on  a  log  waiting  in  profound 
silence,  I  heard  a  crashing  in  the  brush,  and  guessed  in- 
stantly that  it  was  the  coveted  client.  He  was  fighting  his 
way  slowly  through  the  thicket,  but  making  directly  for  the 
choppers.  I  thought  the  game  was  lost,  but  Avhen  he  got 
opposite  me,  not  more  than  twenty  feet  away,  the  Devil 
took  control  of  my  hands,  and  I  lifted  the  handful  of  steel 
pins  in  m}^  right  hand  and  dropped  them  into  my  left,  which 
made  a  prett}^  loud  ringing  noise.  Instantly  the  noise  in 
the  brush  stopped  as  if  the  traveler  was  in  the  attitude  of 


14  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

listening.  The  sight  could  not  penetrate  more  than  half 
the  distance  between  us,  and  the  blows  with  the  axes  still 
continued.  This,  I  appreciated,  must  soon  start  the  man  on 
his  way  to  them,  so  I  gave  the  stakes  another  ringing  clash 
into  the  left  hand,  when  the  man  started  directly  toward 
me  and  very  soon  was  before  me  and  asked  if  I  was  a  law- 
yer. I  felt  guilty  of  having  broken  the  spirit  of  onr  agree- 
ment, if  not  the  letter,  and  regretted  what  I  had  done;  but 
it  was  then  too  late  to  do  much  to  repair  the  wrong  which 
I  felt  I  had  done.  I  appreciated  that  I  had  done  a  mean 
act,  and  I  felt  mean  about  it,  but,  as  usually  occurs  in  such 
cases,  it  redounded  to  Spring's  benefit  instead  of  mine,  of 
which  I  have  been  always  glad,  and  wish  it  might  ever  be 
so  in  such  cases.  I  told  the  inquirer  that  I  was  a  lawyer 
and  that  Mr.  Spring,  to  whom  I  pointed,  was  another,  and 
that  either  of  us  would  be  happy  to  serve  him  profession- 
ally. I  am  sure  it  would  have  been  a  relief  to  me  then  had 
he  gone  over  to  Spring  and  retained  him.  But  no ;  he  said 
he  thought  may  be  I  would  do  and  asked  if  I  could  go  with 
him  then.  I  said  yes,  and  we  started  for  the  clerk's  office 
together,  and  on  the  way  he  stated  his  case  to  me. 

A  man  owed  him  some  money,  who  was  a  non-resident, 
but  had  some  property  which  he  wished  to  attach. 

We  went  to  the  clerk's  office,  where  I  prepared  the  neces- 
sary papers  and  procured  the  writ  of  attachment,  which  was 
duly  served  by  the  time  the  surveying  party  returned.  That 
was  the  first  civil  cause  ever  entered  on  the  docket  of  the 
Circuit  Court  of  Cook  County. 

Spring  was  employed  the  next  day  by  John  Bates,  Avho 
reside  dhere  till  a  few  months  ago,  when  he  was  killed  on  a 
railroad  track  when  about  eighty  years  of  age,  to  interplead 
(which  the  process  of  claiming  the  property  attached  is 
called  in  the  statute). 

At  the  next  term  of  the  Circuit  Court,  which  was  held  in 
May,  1834,  the  case  was  tried  before  the  first  petit  jury  ever 
impaneled  in  the  Cook  Circuit  Court,  when  Spring  beat  me 
and  got  the  verdict.     I  got  my  judgment  by  default  against 


MY  SECOND  CLIENT.  15 

the  debtor,  but  could  never  find  a  thing  out  of  which  I  could 
collect  it,  and  as  my  own  client  never  showed  up  again,  I 
got  nothing  except  a  small  retaining  fee,  w^hile  Sjiring  got 
a  good  fee  and  a  good  client ;  so  the  laugh  was  on  his  side 
at  the  end,  which  I  think  he  enjoyed  almost  as  much  as  he 
did  the  fee. 

I  may  add  that  I  not  only  tried  the  first  jury  case  in  the 
Cook  Circuit  Court,  but  also  the  cases  tried  before  the  first 
juries  impaneled  in  the  Circuit  Courts  of  Kane  County  and 
of  "Will  County,  of  which  I  may  hereafter  give  an  account. 


III. 

MY  FIRST  MAREIAGE  CEREMONY. 
A   FRENCH    COUPLE. 

When  I  Avas  twenty-two  years  old  I  was  elected  a  justice 
of  the  peace  on  the  12th  of  July,  1S34,  and  then  I  com- 
menced my  judicial  career.  The  election  was  for  the  Chi- 
cao-o  precinct,  but  the  jurisdiction  extended  over  the  whole 
county  of  Cook.  I  received  182  votes  and  my  opponent 
received  47  votes. 

I  do  not  propose  to  confine  myself  strictly  to  judicial  or 
professional  incidents,  but  shall  introduce  incidents  and  events 
as  they  shall  occur  to  me,  illustrating  the  state  of  society, 
the  social  and  business  conditions  in  the  community  and 
vicinity  as  they  existed  in  those  early  days,  when  from 
sheer  lack  of  numbers  the  crude  and  the  accomplished 
found  themselves  standing  and  associating  nearly  on  the 
same  level. 

There  were  but  few  young  people  in  Chicago  and  vicinity, 
and  I  was  acquainted  with  nearly  all  of  them  and  soon 
monopolized  nearly  all  of  the  marrying  business. 

The  first  official  act  I  ever  performed  was  to  marry  a 
couple.  James  Ivinzie,  who  was  a  friend  of  the  parties, 
called  on  me  and  informed  me  of  the  service  desired,  and 
wished  me  to  go  with  him  Avithout  delay.  1  put  myself  in 
presentable  apparel  as  soon  as  possible  and  went  with  him. 
He  led  me  down  Water  street  to  the  foot  of  La  Salle,  where 
we  took  a  canoe  and  crossed  to  the  North  side,  and  lie  then 
conducted  me  to  a  log  house  where  we  found  the  wedding 

(16) 


]\ri  FIRST  MARRIAGE  CEREMONY.  17 

]x\rtv  assembled.  He  introduced  me  to  them  in  French,  for 
few  of  them  coukl  understand  English.- 

The  most  interested  parties  were  a  young  couple  of  Can- 
adian French,  who  had  always  been  connected  with  the  fur 
trade  and  could  not  speak  or  understand  English.  The 
bride,  I  should  judge,  was  about  twenty-two  years  old, 
rather  short,  dark  complexioned,  with  a  sliarj)  black  eye. 
The  groom  was  short  and  stout  with  a  fairly  intelligent  ex- 
])ression.  Everything  was  ready.  Kinzie  was  active  and 
officious  and  seemed  to  run  everj'thing  in  his  own  way.  He 
ai'ranged  the  parties  by  the  side  of  the  room  and  requested 
all  the  company  to  stand  up.  At  the  same  time  I  stood 
up  before  them  and  asked  them  in  English  if  they  wished 
to  enter  into  the  contract  of  marriage.  When  Kinzie,  act- 
ing as  interpreter,  asked  them  if  they  wanted  to  get  mar- 
ried, they  both  answered  "  We  !  We  !  "  with  an  inclination 
of  the  head  and  an  emphasis  which  showed  that  they  were  in 
earnest.  I  then  told  them  to  join  their  right  hands,  which, 
M'hen  it  was  interpreted,  they  obeyed.  I  then  went  through 
with  a  rather  short  ceremony,  making  them  promise  enough, 
if  they  kept  all,  to  secure  a  life  of  happiness,  which  Kinzie 
interpreted  sentence  by  sentence,  and  then  I  pronounced 
them  man  and  wife  in  as  solemn  a  voice  as  I  could  assume, 
and  told  the  groom  to  kiss  his  bride,  which,  when  he  under- 
stood the  command,  he  did  with  animation,  while  the  bride 
seemed  becomingly  embarrassed.  It  was  evident  that  she 
would  have  preferred  to  have  had  that  part  of  the  ceremony 
a  little  more  private. 

After  this  all  were  seated  on  benches,  boxes  and  stools, 
except  the  bride  and  groom  and  myself,  who  occupied  the 
only  three  chairs  in  the  house,  which  had  probably  been 
l)orrowed  for  the  occasion.  Some  refreshments  were  then 
served  including  a  sort  of  whisky  punch;  after  this  I  left 
them  to  have  a  good,  jolly  time  among  themselves.  As  I 
left,  Kinzie  slipped  into  my  hand  the  silver  dollar  allowed  by 
law,  which  was  the  lirst  money  I  ever  received  for  official 
3 


18        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

services.  I  was  back  at  m}?"  office  before  noon.  This  was 
my  first  fee  as  justice  of  the  peace.  It  was  well  that  my 
first  marriage  ceremony  was  performed  among-  so  plain  a 
people,  for  as  it  was  I  was  sensibly  embarrassed,  although  I 
managed  to  keep  up  a  calm  exterior,  as  if  it  were  an  ever}- 
day  occurrence  Avith  me. 

Some  one  told  me  that  years  later  I  granted  a  decree  of 
divorce  dissolving  that  same  marriage  contract,  but  I  do  not 
think  that  was  true. 


lY. 

MY  SECOND  IMARRIAGE  CERE.MONY. 
LIFE  IN  THE  EAKLY  DATS. 

There  seemed  to  be  more  "weddings  than  law  suits  at 
that  time  in  Chicago  and  vicinity  in  proportion  to  the  pop- 
ulation, some  of  which  afforded  amusing  incidents — and 
instructive  too — so  far  as  showing  how  things  were  some- 
times done  in  the  olden  time,  Avheu  all  was  primitive. 
Here  I  shall  draw  on  my  memory  for  a  few  more  of  these 
ejents. 

Kot  many  days  after  the  matrimonial  event  last  described, 
a  couple  of  rather  ragged,  bare-footed  boys  called  at  my 
office  and  told  me  that  I  was  wanted  at  their  house  to  marrv 
their  sister.  Careful  inquiry  informed  me  that  they  lived 
in  a  log  house  in  the  woods  about  two  miles  north  of  town, 
that  their  name  was  Cleveland,  and  that  the  party  was 
already  waiting  for  the  squire.  I  recognized  the  house  by 
their  description  as  one  which  I  had  seen  when  out  hunt- 
ing in  that  direction,  and  as  soon  as  I  could  prepare  myself 
properly,  I  procured  a  horse  and  rode  out  to  the  rural 
abode  of  Mr,  Cleveland,  On  arriving,  I  hitched  my  horse 
to  a  sapling  near  by  and  went  in,  I  was  greeted  by  the 
matron  of  the  house,  who  was  a  fat,  robust  looking  woman, 
while  Mr.  Cleveland  was  a  tall,  spare  man  Avith  a  very  fair 
complexion;  I  may  say  he  was  a  pronounced  blonde.  There 
was  but  one  room  in  the  house,  though  that  was  of  good 
size.  It  served  as  kitchen,  drawing  room,  reception  room, 
parlor  and  dressing  room,  and.  no  doubt,  as  sleeping  room 

(19) 


20  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

lor  the  whole  family,  though  no  sign  of  a  bed  ap])eared. 

The  old  lady  bustled  about  till  she  found  the  washboard, 
which  she  deftly  clapped  onto  the  frame  of  a  chair  from 
which  the  splint  bottom  had  long  since  disappeared,  and 
invited  me  to  be  seated,  and  I  was  seated,  and  wiped  from 
my  forehead  the  fast  flowing  perspiration  provoked  by  a 
very  warm  July  day.  A  survey  of  the  reception  room  dis- 
closed no  furniture  except  a  deal  table,  the  seat  which  I 
occupied  and  several  benches  of  different  lengths,  not  to 
mention  some  pots  and  kettles  in  the  corner  of  the  great 
fireplace,  and  some  shelves  in  one  corner  on  which  were 
some  tin  plates  and  cups  and  other  table  furniture,  by  no 
means  extravagant.  Near  this  sat  the  master  of  the  man- 
sion, Avho  might  have  been  fifty-five  years  old,  and  opposite 
to  him  sat,  on  another  stool,  a  soldier  from  the  garrison,  as  I 
judged  from  the  clothes  he  wore.  I  soon  observed  that 
one  corner  of  the  room  was  cut  off  by  old  quilts  and  other 
articles  of  bedding,  and  by  the  agitation  and  whispering, 
this  was  evidently  occupied.  As  it  proved  this  was  the 
dressing  room  in  which  the  bride  was  being  adorned. 

I  soon  took  in  the  situation  and  directly  adapted  myself 
to  it.  I  dashed  into  a  lively  conversation  with  the  good 
lady  of  the  house  in  which  I  soon  learned  where  she  came 
from,  when  she  came  West,  how  she  liked  it,  if  the  ]nos- 
quitos  were  bad  there  in  the  woods  (she  said  they  were  hor- 
rible), how  many  children  she  had  and  the  ages  of  each, 
and  if  it  Avas  her  daughter  to  be  married  and  where  was  the 
groom.  Yes,  her  eldest  daughter  was  the  bride  and  the  gal- . 
lant  soldier  who  sat  in  the  corner  near  the  window  was  the 
groom,  whom  I  was  to  make  happy  by  a  few  official  words. 
Then  I  speared  away  awhile  at  the  old  man,  as  he  was  con- 
sidered in  this  young  country  then,  and  from  him  I  glided 
off  to  the  soldier  and  talked  up  military  matters,  so  that  in 
a  little  while  the  restraint  which  at  first  seemed  to  be  em- 
barrassing wore  off,  and  all  seemed  quite  at  ease  and  happy. 

After  awhile  the  curtain  was  raised  and  the  bridal  party 
came  forth  from  the  secluded  corner  and  burst  upon  us  like 


MY  SECOND  MARRIAGE  CEREMONY.  21 

— like — I  am  at  a  loss  to  find  a  fair  comparison.  First  came 
the  two  vounfi^er  sisters.  Thev  were  of  medium  heiirlit  for 
their  ages,  and  slightly  l)nilt,  and  really  handsome,  one  per- 
haps fifteen  and  the  other  eighteen,  decently  and  plainlv 
dressed,  but  neatlv.  One  of  these,  the  eldest,  I  recoo-nized 
as  ha\ing  seen  at  Ingersol's  Hotel  at  Wolf  Point,  wait- 
ing on  the  table.  They  were  followed  by  the  bride,  gayly 
decked  out  in  furbelows,  but  it  was  clear  she  was  the 
daughter  of  her  mother.  Though  not  tall,  she  was  very 
stout.  I  got  up  from  the  washboard  quickl}^  and  bespoke 
the  party  cheerfully  and  pleasantly  as  I  knew  how. 

Before  any  one  Avas  seated  again,  the  two  boys  walked 
into  the  house  covered  with  perspiration  and  dust,  each  one 
having  a  gallon  jug  strapped  to  his  back.  Our  hostess  soon 
undid  the  strajis  and  placed  the  jugs  on  the  table,  scolding 
the  boys  roundly  for  their  tardiness,  while  tlie}^  protested 
they  had  fairly  run  their  legs  off,  in  order  to  get  back  in. 
time  to  see  the  fun.  Madame  soon  found  a  milk  pan.  into 
which  she  put  a  cup  of  molasses  from  one  jug,  and  then  a 
cup  of  whisky  from  the  other,  and  then  a  cu])  of  cold  Avater 
from  a  pail  standing  under  the  table ;  after  she  had  thus 
measured  out  about  six  quarts,  she  went  at  it  Avith  a  large 
wooden  spoon  and  stirred  it  up  lively.  When  sufficiently 
mixed,  the  good  and  hospitable  lady  took  a  tin  cup  and 
dipped  it  partly  full  and  presented  it  to  me,  saying,  "  Squire, 
are  you  fond  of  blackstrap  ?  I  ahvays  had  a  knack  for  mak- 
ing blackstrap,  and  you  shall  try  it  first,  though  you  ain't 
the  oldest,  I  guess." 

I  protested  that  blackstrap  Avas  mA^  delight  and  the  only 
drink  I  ever  indulged  in,  and  after  putting  it  to  my  lips  pre- 
tended to  drink  heartily.  I  Avas  so  busy  jiraising  the  bever- 
age that  I  doubt  if  she  observed  Avhether  I  drank  or  not.  I 
then  passed  the  cup  to  mine  host,  AA^ho  smacked  his  lips  after 
a  feAv  sAA'alloAvs  as  if  he  Avere  well  used  to  the  exercise.  He 
refilled  the  cup  and  passed  it  to  the  son  of  Mars,  Avho  did 
ample  justice  to  the  skill  of  his  future  mother-in-laAv  and 
then  passed  it  to  the  bride,  and  thence  it  proceeded  to  the 


22  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

other  members  of  the  family.  This  refreshing  scene  occurred 
before  tlie  marriage  ceremony,  an  innovation  no  doubt  born 
of  the  belief  that  it  was  the  most  important. 

While  tliis  convivial  scene  vi^as  in  progress  I  managed  to 
get  the  innocent  soldier  outside  and  took  him  around  the 
corner  of  the  house  and  called  his  attention  to  the  stout 
figure  of  the  bride  which  was  so  marked  that  no  one  could 
fail  to  notice  it.  But  the  prudent  suggestion  which  I  felt 
it  my  duty  to  make  to  one  whom  I  feared  was  being  duped, 
proved  quite  gratuitous,  for  he  said  that  it  was  all  right,  and 
he  had  determined  to  marry  the  girl  any  wa}^  So,  as  his 
license  was  correct  and  duly  signed  and  sealed  by  Col. 
Hamilton,  I  had  no  further  scruples  on  the  subject  and  we 
returned  to  the  cabin  and  soon  after  proceeded  to  make  the 
two  or  three  one.  I  made  the  ceremon}^  very  short  and  did 
not  conclude  it  with  the  directions  for  a  salutation  which 
was  then  quite  the  thing  among  that  class  of  people,  because 
I  thought  the  situation  might  make  that  part  of  the  cere- 
mony rather  awkward,  I  took  my  leave  as  soon  as  possible 
after  having  received  the  statute  dollar  which  just  paid  for 
the  hire  of  the  horse. 

Of  course  I  mentioned  the  cause  of  my  visit  to  the  country 
soon  after  my  return,  and  the  news  soon  reached  the  garrison, 
when  a  file  of  soldiers  was  sent  out  for  the  unlucky  wight, 
who  had  ventured  to  commit  matrimony  without  the  leave 
of  the  commanding  officer,  although  I  am  not  aware  that 
any  of  the  articles  of  war  required  such  permission.  How- 
ever, that  made  no  difference,  and  the  easy-going  bridegroom 
was  rudely  torn  from  the  bowers  of  bliss  and  locked  up  in 
the  guard  house  before  sundown,  where  I  understood  he  was 
kept  on  a  low  diet  for  two  weeks,  and  it  was  a  long  time 
before  he  got  leave  again. 

I  never  interested  myself  to  inquire  how  the  disconsolate 
bride  bore  her  grief  in  the  meantime  or  since. 


Y. 

ANOTHER  CONNUBIAL  EVENT. 
LIFE    IX    THE    COUNTRY A    WEDDING    DINNER. 

One  Saturday  in  March,  1S35,  I  was  called  upon  at  my 
office,  by  a  stout,  vigorous  young  farmer  named  Powell,  and 
requested  to  go  the  next  day  about  sixteen  miles  up  the 
north  branch,  and  unite  him  in  marriage  to  a  young  lady 
living  in  a  log  house  at  Dutchman's  Point.  I  promised  to 
be  on  hand  by  noon  the  next  day  and  he  departed  manifestly 
in  a  very  happy  frame  of  mind,  as  if  contemplating  a  long 
life  of  future  happiness. 

The  next  morning  was  bleak  and  chilly  with  a  strong 
northeast  wind  blowing,  but  when  the  event  of  a  lifetime 
depended  on  my  presence,  and  especially  when  I  rememlDered 
that  I  hoped  that  at  no  very  distant  day  I  should  require  a 
similar  service  of  some  one,  and  how  I  would  want  to  choke 
him  should  he  disappoint  me,  I  drew  on  my  overcoat  soon 
after  breakfast  and  went  to  a  liverv  stable  and  mounted  a 
stout  looking  cob,  and  struck  out  into  the  bleak  prairie,  pre- 
senting my  right  cheek  to  the  cold,  damp  wind. 

The  low,  flat  prairie  was  covered  with  water  for  the  first 
eight  or  nine  miles  which  splashed  up  at  every  step,  and 
frequently  the  horse  would  step  close  beside  a  crawfish  hole, 
with  which  the  prairie  was  honey-combed,  when  the  water 
would  shoot  up  like  a  geyser  to  the  height  of  several  feet, 
often  giving  me  a  good  sprinkling  of  the  muddy  water  and 
more  than  once  striking  me  fairly  in  the  face.  I  had  taken 
the  precaution  to  tie  a  Avrap  around  my  neck  so  as  to  pro- 

(23) 


24        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

tect  my  sliirt  collar  and  bosom,  long  leggins  protected  my 
lower  garments,  and  the  overcoat  received  most  of  the 
showers  of  mud  which  came  above  my  knees.  But  the 
boots !  Nothing  could  be  done  for  them,  and  they  were 
soon  so  soiled  that  their  color  was  indistinguishable.  But 
that  was  no  matter.  Everybody  was  prepared  to  make  al- 
lowances for  that  condition  of  things,  so  I  gave  myself  no 
trouble  about  it. 

E'otwithstanding  the  apparent  discomforts,  that  was,  in 
truth,  a  happy  ride.  The  fact  is  I  was  sometliing  in  love 
m3^self ;  and  so  my  thoughts  were  far  away  from  the  mud 
and  water  and  the  chilly  wind  and  the  bleak  prairie,  revel- 
ing in  thoughts  which  I  need  not  explain,  and  buikling  air 
castles  of  huge  proportions,  which  I  decorated  with  the  most 
elaborate  architecture  and  ornamented  with  the  l)rightest 
colors.  Whoever  has  been  in  this  frame  of  mind,  will  ap- 
preciate how  utterlv  oblivious  I  was  to  all  of  the  actual  sur- 
roundino's  and  lived  for  the  time  in  a  sort  of  El v slum,  and 
listened  to  the  songs  of  the  birds  of  paradise.  Thus  hour 
after  hour  my  horse  plodded  along  at  a  walking  pace,  while 
I  was  in  a  state  of  oblivion  to  my  surroundings.  At  length, 
after  I  had  covered  eight  or  nine  miles  of  this  low,  wet 
prairie,  I  struck  higher  ground  and  it  was  possible  to  in- 
crease my  speed,  which  I  did,  for  I  saw  I  was  likely  to  be 
late  to  the  wedding;  I,  however,  arrived  at  the  designated 
place  in  good  time.  The  house  was  a  large,  commodious  log 
structure  with  several  rooms  on  the  ground  floor.  AVhat 
was  most  cheering  to  me,  was  a  great  wood  fire  in  an  old- 
fashioned  fire-place  at  one  end  of  the  house,  which  would 
admit  great  logs  four  or  five  feet  in  length,  and  seemed  big 
enough  to  rcast  an  ox.  This  fire  wrs  occu|)ied  by  the 
culinary  operations,  which  were  going  on.  A  fine  turkey 
and  a  plump  pig,  which  were  suspended  before  it  and  were 
being  constantly  basted  by  a  ten-year-old  boy,  whose  face 
was  as  red  as  a  beet,  diffused  through  the  room  an  appetiz- 
insr  frao-rance  which  made  me  rejoice  that  dinner  time  was 
rapidly  approaching,  and  my  mouth  fairly  watered  at  the 


ANOTHER  CONNUBIAL  EVENT.  25 

thoiig-ht.  A  nice  party  of  well  dressed  country  people  occu- 
pied the  room,  who  were  as  chatt}^  and  as  jolly  as  the  occasion 
required.  Powell  met  me  at  the  door  and  without  giving 
me  time  to  take  off  my  muddy  wraps  led  me  direct  to  the 
bride  to  whom  he  introduced  me  with  a  flourish,  whicli 
showed  that  the  situation  produced  in  him  no  embarrassment 
more  than  as  if  he  had  been  married  once  a  week  for  the  last 
live  years.  Xot  so,  however,  with  the  girl ;  she  seemed  con- 
sideral)ly  embarrassed  as  all  eyes  were  turned  upon  her. 
She  was  taller  than  the  average  of  women,  and  fairly  stout 
in  proportion.  Indeed  she  was  a  large,  well  formed  woman 
of  fair  complexion.  She  was  decidedly  awkward  in  her  ac- 
tions, evidently  having  seen  but  very  little  of  even  country 
society.  This  might  have  been  expected  when  neighljors 
were  miles  away,  and  she  probabl}' had  not  a  single  acquaint- 
ance in  town,  and  had  never  been  there  more  than  to  pass 
through  it  on  her  way  West.  In  fine,  she  Avas  troubled  to 
know  where  to  put  her  hands  and  feet. 

I  did  my  best  to  put  her  at  ease  by  a  cheerful,  eas}'  and 
commonplace  conversation  and  without  staring  at  her. 
Her  father  and  mother  were  standin":  near  bv  lookinof  on, 
to  whom  I  was  next  introduced,  and  then  I  was  paraded  in 
my  muddy  leggins  and  overcoat  and  introduced  to  all  the 
rest.  I  Avas  then  permitted  to  take  off  my  outer  covering, 
A  boy  had  already  been  sent  to  take  care  of  my  horse,  and 
I  Avas  seated  near  the  fire  to  Avarm  myself  a  little.  This 
Avas  scarcely  done  Avhen  PoAvell,  aa^Iio  acted  as  master  of 
ceremonies  at  his  OAvn  Avedding,  came  up  to  me  and  placed 
in  my  hands  his  marriage  license  and  intimated  that  it  Avas 
time  to  proceed  to  business.  The  license  showed  that  the 
bride  Avas  fourteen  years  of  age  and  the  groom  twenty-six. 
He,  no  doubt,  noticed  my  surprised  look  as  I  again  glanced 
at  the  f  uU-groAvn  bride,  and  quietly  AA^hispered  to  me,  ''  It  is 
all  right;  girls  are  like  new  potatoes.  They  are  old  enough 
as  soon  as  they  are  big  enough.  She  Avill  keep  house  Avith 
the  best  of  them."' 

With  this  he  skipped  back  to  the  side  of  the  blushing 


26  EAKLY  BENCH  AND  BAR  OF  ILLINOIS. 

bride,  seized  her  hand  and  raised  her  to  her  feet.  At  the 
same  time  I  advanced  to  the  middle  of  the  room  in  front  of 
them  and  requested  the  company  all  to  arise,  thinking  she 
would  feel  less  embarrassed  when  all  were  standing.  I  then 
gave  them  a  short  lecture  on  the  solemnity  of  the  occasion, 
and  the  gravity  of  the  responsibilities  they  were  about  to 
assume,  and  the  course  of  conjugal  life  which  would  surely 
result  in  the  greatest  possible  measure  of  happiness  to  both. 
This  no  doubt  sounded  funny  from  a  young  fellow  not  yet 
twenty-three  years  of  age  and  who  knew  no  more  about 
matrimony  than  he  did  about  preaching,  nor  half  so  much, 
but  the  truth  is,  he  had  already  begun  seriously  to  think 
about  it  and  had  in  reality  thought  much  upon  the  proper 
course  for  husbands  and  wives  to  pursue  toward  each  other 
to  enable  them  to  live  happily  together,  and  I  am  not  sur- 
prised that  it  had  to  break  out  on  so  proper  an  occasion. 

Well,  I  married  them  good  and  strong,  but  at  the  conclu- 
sion I  thought  I  would  not  gratify  the  groom's  love  of  dis- 
]ilay  and  increase  the  bride's  embarrassment  by  directing 
him  to  salute  his  bride,  yet  he  did  it  all  the  same,  and  she 
submitted  meekly,  as  if  it  were  inevitable,  as  he  had  no  doubt 
informed  her  that  it  was  indispensable  to  a  good  marriage, 
and  very  likely  had  acted  upon  the  belief  that  de  bene  esse 
is  just  as  safe  and  just  as  proper  under  the  circumstance  as 
mine ])ro  tunc. 

I  then  shook  hands  with  the  newly  married  couple  and 
congratulated  them  cordially,  and  my  example  was  followed 
by  only  a  part  of  the  company,  the  rest  evidently  being  too 
diffident  to  thus  display  themselves.  So  soon  as  all  was 
over  the  good  housewife,  the  mother  of  the  bride,  made  a 
movement  for  the  big  family  table,  which  was  pulled  out 
into  the  middle  of  the  room,  and  many  willing  hands  helped 
her  to  set  it,  and  to  dish  u]3  as  good  a  dinner  as  I  ever  wish 
to  sit  down  to.  The  carving  was  not  of  the  most  artistic 
character,  but  the  turkey  and  the  pig  and  the  boiled  ham 
were  soon  reduced  to  ample  portions,  while  the  fricasseed 
chicken  had  been  dismembered  before  it  was  put  into  the 


ANOTHER  CONNUBIAL  EVENT.  27 

pot.  Boiled  potatoes  and  mashed  potatoes,  corn  bread  and 
white  bread,  all  done  to  perfection,  filled  out  a  dinner  that 
an  emperor  might  have  envied,  and  my  long  cold  ride  had 
fitted  me  gloriously  for  just  such  a  dinner.  Coffee  was  the 
only  beverage,  but  it  was  as  good  as  the  rest  of  the  repast 
and  nothing  more  was  wanted. 

The  good  woman  of  the  house  watched  my  eating  with 
evident  satisfaction  and  listened  to  my  encomiums  of  her 
skill  Avitli  even  more,  and  when  I  expressed  the  hope  that 
her  daughter,  the  bride,  could  do  as  well,  she  was  still  more 
pleased  and  assured  me  that  she  had  been  all  her  life  teach- 
ino;  that  girl  all  about  it  and  that  she  knew  it  from  A  to 
izzard. 

AVe  all  showed  stalwart  appetites,  and  even  the  bride  vin- 
dicated her  sturdy  appearance  at  tlie  trencher,  and  it  was 
hard  to  get  her  to  suspend  the  process  of  mastication  long 
enough  to  express  her  opinions  on  any  subject,  if  she  had 
any  brilliant  ones. 

Soon  after  dinner  I  expressed  my  wish  for  my  horse  and 
the  small  boy  was  sent  for  him,  while  I  endeavored  to  get 
inside  my  muddy  wraps.  When  this  was  accomplished 
Powell  came  up  to  me  and  placed  a  silver  dollar  in  my  hand 
with  the  air  of  one  who  thought  he  was  doing  the  hand- 
some thing  and  he  did  not  care  who  knew  it,  evidently 
expecting  profuse  thanks;  but  when  I  remembered  that  I 
must  pay  two  dollars  for  the  hire  of  the  horse,  and  as  it  was 
too  late  to  return  to  town  I  must  impose  myself  upon  the 
hospitality  of  some  friend  in  the  country,  I  did  not  feel 
like  thanking  him  very  much,  so  I  took  my  leave  with- 
out great  ceremony,  mounted  my  horse  and  rode  aAvay 
across  the  bleak  prairie  toward  the  hospitable  abode  of  Mr. 
Mansel  Talcott,  on  the  O'Plane  river,  eight  miles  distant. 

The  generous  dinner  I  had  eaten  so  fortified  the  inner 
man  that  the  outer  did  not  mind  the  cold  blast  which  was 
noAV  nearly  to  my  back.  I  could  not  help  reflecting  on  the 
way,  that  she  whose  destinies  I  had  just  united  with  the 
man  whose  disposition  I  had  just  seen  illustrated,  would  not 


28        EARLY  BENCH  AND  BAR  OV  ILLINOIS. 

be  likely  to  be  over-burdened  with  too  much  pin  monev: 
in  fact  I  doubted  if  she  ever  got  any.  I  have  never  heard 
since  how  that  was,  though  I  have  heard  that  Powell  proved 
a  man  of  some  business  capacity  and  worked  a  number  of 
men  on  his  farm,  whom  he  fed  principally  on  boiled  wliite  tur- 
nips, asserting  that  if  they  would  stuff  their  s/i  irts  full  enough 
of  that  they  would  not  starve,  and  I  was  ready  to  believe  it. 

More  than  fifty  years  later,  at  a  reception  given  by  the 
Calumet  Club  to  the  old  settlers  of  Chicago,  the  young- 
bride  of  that  long  time  ago,  introduced  herself  to  me  in  a 
frank  and  easy  way,  showing  that  she  had  seen  much  of  the 
world  since,  and  she  had,  for  she  had  kept  a  country  tavern 
just  beyond  the  suburbs  of  the  city.  She  had  lost  her 
Powell,  but  had  captured  a  second  husband  who,  I  have 
since  learned  from  another  source,  did  not  turn  out  all  she 
Jiad  hoped  for,  and  from  whom  she  filed  a  bill  for  a  divorce, 
in  which  she  was  defeated  by  having  shown  too  much  kind- 
ness to  the  defendant  ■pendente  lite.  But  for  all  this  she 
now  seemed  jolly  and  happy. 

I  arrived  at  Mr.  Talcott's  a  little  before  sunset  and  was  re- 
ceived at  the  door  l)y  the  old  gentleman  (even  middle-aged 
men  seemed  old  to  me  then),  with  that  o])en-handed  and 
generous  hospitality  Avhich  was  a  part  of  Mr.  Talcott's  very 
being,  and  which  I  had  often  before  enjoyed,  and  with  a 
welcome  by  the  ladies  inside  not  a  whit  the  less  cordial. 

These  consisted  of  Mrs.  Talcott  and  their  daughter  An- 
geline,  a  young  lady  perhaps  twenty  years  of  age,  smart, 
well  educated  and  accomplished,  and  an  ornament  to  any- 
society  into  whose  association  she  might  be  thrown. 

Only  the  summer  before  they  had  heard  that  I  Avas  sick 
in  town,  and  sent  for  me  and  kindly  nursed  me  for  two 
weeks  till  I  got  able  to  return  to  my  work. 

Angeline  was  one  of  the  very  few  friends  to  whom  I  had 
confided  my  own  love  affair  at  the  East,  in  which  she  took 
a  lively  interest  and  seemed  as  pleased  as  I  was  to  talk 
about  it,  and  she  made  me  describe  my  sweetheart  over  and 
over   again,    till   she   said  she  would  know  her  on  sight, 


ANOTHER  CONNUBIAL  EVENT.  29 

though  she  wondered  how  I  should  know  her  myself  Avhen 
she  remembered  that  I  had  never  passed  a  word  with  her 
orally,  but  that  little  piece  of  romance  connected  with  the 
affair  seemed  to  impart  to  it  an  additional  interest.  Her 
mother  was  a  most  charming  woman,  of  rather  a  frail  ap- 
pearance, yet  smart  and  active,  about  lif ty-five  years  of  age, 
Avith  a  lively,  cheerful  disposition,  which  made  her  enjoy 
young  people's  society,  and  with  whom  her  sympathies  were 
as  much  awakened  as  they  would  have  been  thirty  years 
before.  She  was  a  charming  companion  to  both  old  and 
young.  Mr.  Talcott  was  an  uncommonly  stout  man,  with 
an  exterior  appearance  rather  rough,  but  with  a  heart  big- 
enough  for  several  common  men.  Xor  must  I  omit  to  men- 
tion Mansel  Talcott,  Jr.,  who  was  then  a  lad,  I  should  think, 
about  sixteen  years  old,  who  already  showed  evidence  of 
that  business  capacity  which  he  afterward  displayed,  and 
that  kindly  nature  and  generous  heart  for  which  he  was  dis- 
tinguished in  manhood. 

During  the  evening  I  gave  an  account  of  the  late  wed- 
ding, and  all  were  vastly  amused;  esjiecially  at  tlie  fee  I  had 
received  and  my  way  of  describing  the  ceremony. 

Angeline  had  been  commissioned  to  engage  my  official 
services  at  another  wedding,  about  two  Aveeks  hence,  at  the 
house  of  a  neighbor  two  miles  up  the  river. 

It  Avas  arranged  that  I  should  come  out  in  the  forenoon 
of  the  day  of  the  Avedding,  and  spend  the  afternoon  at  the 
house  of  my  hospitable  friend,  for  the  wedding  was  to  occur 
in  the  evening. 

The  next  morning  I  returned  to  toAvn. 


YI. 

ANOTHER  WEDDING  IN  RURAL  LIFE. 
EEFLECTIONS EEMINISCENCES. 

On  a  pleasant  spring  morning  in  March,  1835,  I  mounted 
my  liorse  and  struck  out  over  the  unbroken  prairie  for  the 
house  of  my  very  kind  friend,  Mr.  Mansel  Talcott,  to  fulhll 
the  appointmcnb  which  I  had  made  some  days  before  with 
Miss  Talcott,  to  unite  in  the  bonds  of  wedlock  a  rural  couple, 
whose  love,  I  doubt  not,  was  as  sincere  and  as  earnest  as  if 
they  had  walked  in  a  higher  circle  of  society. 

These  errands  of  love  always  made  me  meditative  and 
happy.  They  seemed  to  remind  me  of  the  joyous  time  to 
come,  in  the  hopes  of  which,  after  so  many  years  have  passed 
away,  I  can  truly  say  I  was  not  disajipointed;  nay,  my 
brio-htest  dreams  have  been  more  than  realized.  I  built  air 
castles  big  and  beautiful.  Naturally  of  a  hopeful  disposition 
I  was  ever  feasting  on  hopes,  not  blindly  as  if  they  were  to 
be  realized  by  destiny,  but  determinedly,  as  if  they  must  be 
realized  by  my  own  efforts  and  merits,  with  the  help  and 
support  of  one  who  I  felt  sure  would  sympathize  with  me 
and  encourage  me.  In  this  I  have  not  been  disappointed.. 
In  whatever  of  success  has  attended  my  efforts,  she  has  done 
her  full  share,  and  now  in  old  age  we  are  passing  down  the 
hill  together,  with  the  same  cheerful  concord  and  sympathy 
which  has  ever  since  characterized  our  lives.  If  the  ascent 
was  steep  and  laborious,  its  descent  is  gentle  and  quiet. 
The  wayside  seems  strewn  with  flowers  whose  fragrance  is 
grateful  and  refreshing. 

(30) 


ANOTHER  WEDDING  IN  RURAL  LIFE.  31 

It  was  during  my  solitary  rides  over  the  prairies  that  I 
used  to  indulge  in  those  day  dreams  and  formed  })lans  and 
resolutions  to  make  them  realities.  When  engaged  in  real 
business  I  had  the  force  of  will  to  expel  them  entirely 
from  my  mind  and  to  concentrate  my  thoughts  relentlessly 
upon  whatever  I  had  in  hand.  If,  as  the  time  approached, 
this  was  sometimes  hard  to  do,  yet  I  did  it  and  gave  my  un- 
divided thouo'hts  to  business.  I  knew  I  had  to  work.  I 
resolved  to  work,  and  to  some  purpose. 

Sweet  is  the  consciousness  of  a  well-spent  life.  I  can 
survey  the  past  in  a  calm3r  mood  than  I  then  surveyed  the 
future,  and  am  astonished  to  see  how  well  that  future  has 
been  realized.  Indeed,  my  success  has  been  more  than  I 
then  anticipated,  my  domestic  happiness  has  been  more 
than  I  then  dared  to  hope  for,  but  my  labors  have  been 
harder  than  I  then  supposed  that  I  was  capable  of  perform- 
ing, though  I  have  overcome  the  obstacles  which  I  have  en- 
countered in  the  way  with  greater  ease  than  I  then  thought 
possible.  I  have  developed  business  capabilities  outside  of 
my  profession,  of  which  I  was  then  unconscious,  and  which 
my  industry  and  love  of  labor  have  turned  to  good  account. 
It  is  a  sweet  reflection  in  the  decline  of  life  to  believe  that 
I  have  not  lived  in  vain,  that  I  have  contributed  my  mite 
to  the  well-being  of  mankind,  and  that  this  seems  to  be  ap- 
preciated by  my  fellow-men;  that  I  have  in  some  measure 
filled  the  place  designed  for  me  by  Him  who  regulates  the 
economy  of  the  Universe. 

I  may  now  say  to  young  lawyers  that  they  can  only  suc- 
ceed in  their  profession  by  hard  work  and  by  the  highest 
integrity  and  honoraljle  practices.  The  first  is  necessary  to 
learn  what  the  law  is  and  its  proper  application  to  given 
facts.  The  next  is  indispensable  to  secure  lucrative  employ- 
ment. Little  tricks  and  sharp  practices  may  succeed  for  a 
time  in  little  cases,  but  they  can  never  secure  an  honorable 
reputation,  which  is  indispensable  to  marked  success.  They 
are  evidence  of  a  little  mind  and  can  not  secure  a  large  re- 
ward, either  in  reputation  or  financially.     Little  advantages 


32  EARLY  BENCH  AND  BAR  OF   ILLINOIS. 

dishonorably  obtained  are  worse  than  honorable  defeats. 
Hold  your  honor  as  sacred  as  your  soul's  welfare.  Show 
3^ourselves  worthy  of  the  highest  trust  and  you  will  be 
trusted;  not  without.  Work  hard  and  think  strongly  and 
deliberately.  Lincoln  was  a  great  example  of  all  these 
characteristics. 

I  arrived  at  the  hospitable  house  of  my  friend  for  dinner, 
and  was  welcomed  with  a  cordiality  which  bespoke  the  kind- 
ness of  heart  which  there  prevailed.  The  afternoon  was 
pleasantly  spent  and  as  the  shadows  of  evening  began  to 
fall,  Anffeline  and  I  mounted  our  horses  and  took  the  trail 
leading  up  the  river  along  the  skirts  of  the  timber  which 
bordered  its  banks.  My  companion  was  to  be  bridesmaid 
and  we  had  a  sort  of  rehearsal,  and  I  received  particular  in- 
structions on  some  points  which  she  thought  important,  and 
especially  was  I  to  require  the  salutation  of  tlie  bride  by  the 
groom  at  the  close,  the  contemplation  of  which  she  seemed 
to  much  enjoy,  and  she  insisted  that  I  should  do  the  same 
thing  immediately  after,  and  she  would  arrange  it  so  that 
the  whole  com])any  should  follow  my  exam|)le.  This  I 
promised  but  with  the  condition  that  the  bridesmaid  should 
receive  the  same  attention,  to  which  she  at  first  demurred, 
but  finally  said  she  would  manage  that  all  right. 

It  was  dark  when  we  arrived  at  the  log  cabin  of  the  set- 
tler, who  was  among  the  first  to  locate  in  the  OTlane 
tmiber.  It  was  a  good  sized,  commodious  house  for  a  fron- 
tier settler,  and  all  about  bespoke  neatness  and  respecta- 
bility. Several  of  the  neighbors  were  assembled  to  witness 
the  ceremony.  Angeline  introduced  me  to  them  all,  for  she 
had  made  the  acquaintance  of  nearly  all  of  the  settlers  for 
miles  around.  She  had  given  me  no  description  of  the 
bride  or  groom,  only  that  they  knew  nothing  of  what  is 
called  society  but  had  only  associated  with  frontier  life,  and 
that  the  bride's  family  belonged  to  the  Society  of  Friends, 
and  so  I  must  expect  to  see  everything  plain — A^ery  plain. 
As  my  family  belonged  to  that  society  and  I  had  been 
brought  up  under  its  teachings,  I  was  glad  to  learn  that  I 


ANOTHER  WEDDING-  IN  RURAL  LIFE.  33 

should  meet  some  of  that  faith  which  m}?-  mother  so  much 
loved,  out  on  this  remote  frontier. 

Angeline  had  already  told  them  of  my  antecedents  in  this 
regard,  and  doubtless  this  had  its  influence  in  the  selection 
which  was  made  of  the  officiating  officer,  for  the  Friends 
will  tolerate  a  marriage  ceremony  performed  l)y  a  civil 
magistrate,  while  they  can  not,  with  a  clear  conscience,  be 
present  at  one  celebrated  by  a  preacher  of  another  denomi- 
nation. 

The  bride  was  young,  and  the  groom  was  not  many  years 
her  senior.  She  was  quite  plain  looking,  but  he  was  one  of 
the  handsomest  young  men  I  ever  saw.  His  was  not  an 
effeminate,  delicate  beaut}^  but  a  manly,  sturdy  beauty,  if 
that  term  be  proper  when  speaking  of  one  of  medium  size, 
yet  of  a  powerful  build,  uniform  features,  a  frank,  open  and 
winning  countenance,  toward  whom  one  felt  oneself  drawn 
as  if  by  a  cord  of  friendship,  not  to  say  admiration,  at  first 
sight.  He  was  a  decided  brunette,  but  this  rather  added  to 
his  manly  beauty.  I  soon  learned  that  he  was  as  un- 
acquainted with  the  ways  of  the  world  as  one  who  had 
spent  his  life  on  a  farm  well  could  be,  and  had  never  l)een 
in  any  town  more  than  to  pass  through  it,  and  had  only  as- 
sociated with  those  in  similar  conditions.  He  was  of  good 
natural  parts  and  a  clear  intellect. 

He  soon  intimated  to  me  that  he  would  like  to  see  me 
alone,  so  we  took  a  walk  out  of  doors,  when  he  told  me  tliat 
he  had  never  seen  a  wedding,  and  would  like  to  be  in- 
structed as  to  the  mode  of  proceeding  and  what  he  was  ex- 
pected to  do.  I  then  rehearsed  to  him  the  order  of  the 
ceremony  to  its  conclusion,  that  he  would  have  nothing  to 
do  but  to  assent  to  the  questions  which  I  should  ask  him, 
and  to  join  right  hands  with  the  lady.  That  at  the  con- 
clusion of  the  ceremony  I  should  direct  him  to  salute  his 
bride,  which  he  must  do  as  an  evidence  that  he  recognized 
her  as  his  lawful  wife;  this  meant  that  he  should  kiss  her 
then  and  there. 

In  the  meantime  Angeline  had  been  getting  the  bride 
3 


34  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

readv  for  the  dread  event.  She,  too,  had  never  witnessed  a 
wedding  and  knew  nothing  of  its  proceeding,  but  had  some 
idea  of  its  consequences. 

The  bridesmaid  gave  her  minute  instructions  as  to  how 
she  shoukl  act  her  part,  but  carefully  abstained  from  any 
intimations  to  the  concluding  performance,  about  which  I 
was  so  particular  to  instruct  the  groom. 

When  we  returned  to  the  house  the  party  seemed  to  be  in 
waiting  for  us.  The  bride  and  bridesmaid  were  seated  by 
themselves  at  one  side  of  the  room,  while  the  company  were 
seated  as  far  away  as  they  could  get.  As  I  saw  every  thing- 
was  ready,  I  told  the  groom  to  take  his  place  at  the  right 
hand  of  the  bride,  who,  Avith  the  bridesmaid,  rose  to  her 
feet  in  good  order.  She  was  dressed  in  white  muslin,  as  was 
befitting,  but  the  pattern  of  the  wedding  garment  was  very 
domestic  and  unique.  In  short,  it  was  precisely  that  of  a 
lady's  nightgown  with  a  yoke  at  the  top  and  a  most  elab- 
orate skirt  and  large  sleeves.  This  Angoline  had  gathered 
around  the  waist  with  a  broad,  red  ribbon,  which  I  think 
she  had  brought  along  for  the  purpose,  as  a  sort  of 
wedtling  present,  for  I  afterward  learned  that  she  had 
planned  that  wedding  costume  to  suit  her  own  fancy,  or,  I 
may  say,  freak.  It  was  in  the  main  well  adapted  to  tlie 
plain  and  sim])le  taste  of  the  Friends,  though  the  red  belt 
and  big  bow  in  front  were  a  reluctant  concession  to  the 
vanities  of  the  world.  The  hair  of  each  of  the  ladies  was 
disposed  of  in  the  plainest  possible  way  and  without  the 
least  ornament,  and  I,  who  had  in  early  life  been  taught  to 
admire  plainness  in  everything,  thought  they  really  looked 
beautiful. 

I  placed  myself  in  the  space  in  front  of  the  bridal  party 
and  then  asked  the  company  to  arise.  I  proceeded  to  de- 
liver a  lecture  upon  the  solemnity  of  the  occasion  and  the 
great  responsibilities  wdiicli  these  parties  were  about  to 
assume  and  how  they  should  bear  themselves  toward  each 
other  in  order  to  insure  the  greatest  amount  of  domestic 
happiness,  and  all  of  that.     During  this  delivery  I  tried  to 


ANOTHER  WEDDING  IN  RURAL  LIFE.  35 

imagine  myself  a  person  of  fift}',  who  knew  well  what  he 
was  talking  about,  instead  of  a  young  squire  of  twenty- 
three. 

I  knew  Miss  Talcott  was  all  the  while  trying  to  catch  my 
eye  so  that  by  some  ludicrous  or  grotesque  look  or  expres- 
sion of  countenance  she  could  make  me  break  down  or 
make  me  laugh,  but  I  refused  to  gratify  that  desire,  and 
kept  my  eyes  steadily  fixed  upon  the  two  interested  parties, 
who  were  a  real  study  at  that  time. 

At  the  close  of  my  lecture  I  proceeded  with  the  ceremony 
proper,  which  I  soon  concluded  and  pronounced  them  man 
and  wife,  Avhen  I  directed  the  groom  to  salute  his  bride. 
As  this  was  the  part  which  he  had  no  doubt  most  held  in 
expectation,  he  made  a  fierce  grab  at  his  new  made  wife 
and  attempted  to  execute  the  order.  This  ^vas  entirely 
unexpected  by  her,  and  as  she  probably  had  no  idea  of  the 
meaning  of  the  direction  which  I  had  given,  she,  no  doubt, 
thounjht  the  voung  man  had  lost  his  mental  balance  as  she 
had  nearly  done  herself;  she  rushed  away  from  the  supposed 
madman  in  real  terror  and  actually  fought  back  in  a  cat- 
like manner.  But  he  was  equal  to  the  occasion,  and  fol- 
lowed her  up  with  such  manly  vigor,  quite  to  the  corner  of 
the  room,  to  which  she  retreated,  that  by  superior  strength, 
he  accomplished  his  purpose  with  such  a  smack  that  it  could 
have  been  heard  out  of  doors. 

When  she  was  released  from  the  embrace  of  her  stalwart 
husband,  she  had  nearly  fainted,  but  Angeline  came  to  her 
support  and  assured  her  that  it  was  all  right  and  a  neces- 
sary part  of  the  ceremony  v»diich  she  had  unfortunately 
neglected  to  explain  to  her.  It  took  some  time,  however, 
to  reconcile  her  to  having  been  kissed  by  a  man  in  so  pul)lic 
a  wa}",  and  Angeline  said  she  much  doubted  whether  he  had 
ever  kissed  her  before  in  his  life. 

This  rumiras  was  enjoyed  by  the  mischievous  bridesmaid 
be3'ond  measure,  and  she  could  hardly  refrain  from  laugh- 
ing outright  and  boisterously  at  the  ludicrous  figure  which 
the  scene  presented.     Her  plans  had  worked  to  a  charm  and 


36        EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

just  as  the  ingenious  girl  had  hoped.  Most  of  the  company 
stared  upon  the  scene  as  if  a  cataclysm  was  actually  taking 
place,  though  a  few  plainly  understood  and  enjoyed  it. 

After  this  funny  episode  had  terminated  and  Angeline 
had  got  the  parties  back  to  their  places,  though  it  was  dif- 
ficult to  make  the  timid  bride  understand  that  all  was  not 
yet  over,  I  stepped  up  to  the  married  couple  and  shook  their 
hands  and  warmly  congratulated  them  on  the  happy  change 
which  had  now  taken  place  in  their  life  history,  though  I 
doubt  if  the  abashed  girl  understood  a  word  I  said;  but  the 
groom  evidently  enjoyed  the  situation  in  a  calm  and  confi- 
dent manner.  I  was  stubbornly  blind  and  deaf  to  all  the 
winks  and  nods  of  the  roguish  bridesmaid  to  go  further  and 
kiss  the  bride  myself.  I  felt  it  would  have  been  a  cruelty  to 
have  further  embarrassed  the  timid  creature,  especially  as  I 
felt  sure  that  Angaline  would  have  assured  all  the  rest 
that  it  was  the  proper  thing  for  each  one  to  do  the  same 
thing. 

AVlien  I  had  turned  away  leaving  half  of  the  programme 
unexecuted,  the  bridesmaid  hastened  up  to  the  father  and 
mother  of  the  bride  and  by  mere  force  rushed  them  up  to 
the  wedded  pair  to  kiss  and  congratulate  their  daughter, 
and  assuring  the  good  lady  that  it  would  be  a  clear  slight 
if  she  should  omit  that  mark  of  respect  for  her  son-in-law. 
Her  confident  impetuosity  carried  her  point  and  the  young 
man  took  the  salute  of  his  new  mamma,  if  not  with  a  hearty 
relish,  at  least  with  a  benign  resignation.  The  father  kissed 
his  daughter  Avith  an  affectionate  tenderness  which  plainly 
bespoke  the  depth  of  the  love  he  felt  for  her,  and  she  received 
it  as  if  it  was  a  daily  occurrence,  and  carried  a  blessing  with 
it.  All  efforts  to  get  the  rest  of  the  company  to  follow 
up  the  assault  proved  abortive,  and  soon  the  order  of  the 
gathering  was  broken  up.  Then  vre  did  our  best  to  inspire 
a  lively  mood  and  not  entirely  without  success.  I  talked 
Avith  all  of  the  oldest  people  in  the  room  on  such  subjects 
as  I  thought  would  most  interest  them,  and  it  was  not  diffi- 
cult to  get  on  free  and  easy  terms  with  them  all. 


ANOTHER  WEDDING  IN  RURAL  LIFE.  3/ 

Angclino  knew  them  nearly  all,  and  lier  kind  lierirt  and 
social  disposition  were  well  appreciated  wherever  she  went. 
Indeed,  she  had  become  a  sort  of  oracle  among  them.  She 
was  a  favorite  among  all  classes. 

At  length  some  plain  but  excellent  refreshments  were  set 
before  us,  including  chickens  and  some  coffee,  well  brewed, 
Avhich  Vv' ere  disposed  of  with  the  celerity  peculiar  to  frontier 
life. 

13y  ton  o'clock  all  were  gone  but  ourselves.  Angeline 
said  she  must  stand  by  her  friend,  the  bride,  till  the  last, 
and  she  did  so.  We  then  took  our  leave  and  left  that  iimo- 
cent  and  amiable  family  to  their  quiet  and  peaceful  life. 

Yie  had  scarcely  got  out  of  hearing  of  the  house  when 
my  companion  became  convulsed  with  laughter,  and  she 
made  the  forest  ring  with  her  merry  peals.  She  rehearsed 
over  and  over  the  scene  which  she  had,  in  fact,  created,  and 
pointed  out  the  ludicrous  parts,  laughing  to  the  echo  at  each. 

Angeline  was  fond  of  fun  and  fertile  in  resources  to  create 
it,  but  kind  of  heart  and  sympathetic.  If  her  practical 
jokes  caused  temporary  pain  or  annoyance,  she  managed 
afterward  to  obliterate  their  memory  by  kind  and  generous 
acts,  in  which  she  delighted  even  more  than  in  her  merry- 
makino;. 

More  than  fifty-three  years  have  now  elapsed  since  the 
events  which  I  have  related  occurred.  It  would  be  interest- 
ing to  know  how  many  who  witnessed  them  are  still  left  to 
rememljer  them.  Many  years  have  elapsed  since  the  amiable 
girl,  who  was  then  my  companion,  passed  away,  mournetl 
by  a  husband  and  a  large  circle  of  appreciative  relatives  and 
friends.  But  where  are  the  parties  most  interested  in  what 
took  place  on  that,  to  them,  memorable  evening  ?  Have  thev 
been  spared  to  celebrate  their  golden  wedding,  surrounded 
by  descendants  as  virtuous  and  as  worthy  as  they  were 
themselves  ?  I  have  never  seen  them  since,  and  have  now 
forgotten  their  names,  so  that  it  would  be  difficult  to  hunt 
them  up,  even  if  living;  so  that  I  may  not  hope  even  to 
meet  them  again;  and  yet  I  never  married  a  couple  who 
really  interested  me  more. 


YII. 

CIRCUIT  SCENES. 
I. 

THE  FIRST  TEEM  OF  CIRCUIT  COURT  IN  COOK  COUNTY FIRST  TETAL 

FOR   MURDER    IN  COOK   COUNTY DEFENDS  A  THIEF    IN    WILL 

COUNTY FIRST  TRIAL  IN  KANE  COUNTY. 

In  the  first  paper  of  this  series,  I  have  stated  how  it 
occurred  that  I  prosecuted  before  the  examining  magistrate 
the  first  case  that  was  ever  entered  npon  the  docivct  of  the 
Circuit  Court  of  Cook  County,  and  in  the  second  paper  I  have 
related  how  it  liap])ened  that  I  was  retained  in  the  first  civil 
case,  which  was  marked  No.  2,  wdiich  ever  found  a  place 
upon  that  same  docket. 

The  first  term  of  the  Circuit  Court  of  this  couuty  was 
presided  over  by  Judge  Young,  and  was  held  on  the  Ittth 
day  of  May,  1833.  By  the  act  of  February  16,  1831,  Cook 
county  w^as  placed  in  the  fifth  judicial  circuit,  and  by 
another  act  of  the  same  date,  the  times  for  holding  courts 
in  Cook  county  were  fixed  for  the  fourth  Monday  in  April 
and  second  Monday  in  September;  but  as  there  was  no  busi- 
ness to  be  transacted,  either  civil  or  criminal,  no  circuit 
courts  were  organized  in  this  county  in  that  year,  nor  until 
the  May  term,  1834,  Avhen,  as  before  stated,  the  first  court 
was  organized.  Although  my  two  cases  Avere  entered  upon 
the  docket  previous  to  the  first  day  of  October,  1833,  w^hen 
the  court  should  have  been  organized,  Judge  Young  did  not 
appear,  and  so  no  court  was  then  held. 

I  am  aware  that  it  has  been  claimed  that  an  earlier  court 

(38) 


CIRCUIT  SCENES.  39 

liail  been  held  in  Cook  county,  but  this  impression,  no 
doubt,  has  arisen  from  the  fact  that  the  hiws  lixed  the  times 
for  holding  the  courts  in  Cook  county  before  that  date;  but 
at  none  of  these  times  was  the  court  held,  for  the  simple  and 
sufficient  reason  that  there  was  no  business  for  it  to  do  until 
the  October  term,  1833,  when  Judge  Young  did  not  appear 
to  hold  the  court. 

After  the  grand  jury  was  impaneled  at  this  May  term, 
and  had  been  charged  by  Judge  Ford,  who  was  then  state's 
attorney  for  the  fifth  circuit,  they  retired.  It  was  at  that 
time  very  common  for  the  presiding  judge  to  call  upon  the 
state's  attorney  to  charge  a  grand  jury,  and  it  was  not 
uncommon  for  him  to  call  upon  some  member  of  the  bar  to 
perform  that  office.  Indeed,  it  was  sometimes  the  case  that 
a  lawj^er  of  note,  when  first  attending  a  court,  gladly 
accepted  such  a  position  as  a  means  of  introducing  himself  to 
a  new  community,  and  in  such  cases  the  charge  was  sure  to 
l^e  an  elaborate  one,  able  and  to  the  point.  I  do  not 
i-emember  that  any  indictments  were  returned  by  that  grand 
jury,  except  against  the  young  man  whom  I  had  prosecuted 
for  stealing  the  Bellows  Falls  money,  and  as  he  failed  to 
appear  (as  it  was  probably  intended  that  he  should  do 
Avhen  the  bail  was  taken),  I  am  very  confident  that  no 
criminal  trial  took  place  at  that  term. 

The  first  petit  jury  ever  impaneled  in  that  court  was  to 
try  ni}'-  attachment  case,  of  which  I  have  previously  s])okeu, 
and  in  which  I  was  beaten  by  Sjiring,  and  as  I  think  he 
was  right,  and  as  I  felt  all  the  while  a  self-reproach  for  the 
manner  in  which  it  came  to  my  hands,  I  felt  a  relief  rather 
than  chagrin  at  the  result,  altliough  I  made  the  very  best 
fight  I  could,  and  tried  liard  to  get  a  verdict  against  the 
weight  of  evidence.  Thus  it  fell  to  my  lot  to  conduct  the 
first  jury  case  that  was  ever  tried  in  the  Circuit  Court  of 
Cook  County. 

At  the  same  term  I  had  a  liabeas  corpus  case,  of  which 
I  presume  the  State  courts  would,  at  this  time,  decline  to 
take  jurisdiction.     It  was  against  the  commandant  at  Fort 


40  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Dearl3orn  for  the  release  and  discharge  of  a  soldier  under 
his  command,  on  the  ground  that  he  was  under  age  when 
he  enlisted,  and  as  his  father  had  not  given  his  consent  as 
the  law  required. 

I  found  precedents  in  a  Digest  of  the  New  York  Eeports 
where  the  State  courts  had  exercised  that  jurisdiction,  and 
indeed  very  little  opposition  to  my  proceeding  was  made 
on  that  point,  and  Judge  Young  sustained  his  jurisdiction. 
At  that  time  the  State  courts  claimed  jurisdiction  in  nearly 
all  cases  where  it  was  not  vested  exclusively  in  the  Federal 
courts,  and  without  this  citizens  would  have  often  been 
subjected  to  great  inconvenience  and  expense  by  being  com- 
pelled to  resort  to  the  Federal  courts,  generally  at  a  great 
distance  away.  In  this  case  it  would  have  been  equivalent 
to  a  denial  of  justice  to  compel  this  boy  to  go  to  Judge 
Pope  at  Springfield  to  get  the  vrrit,  and  compel  him  to  go 
there  for  the  trial. 

Upon  the  trial  I  proved  by  a  witness  who  knew  him 
from  childhood  that  he  was  under  the  age  of  eighteen  years, 
which  was  also  clearly  manifest  from  his  appearance,  but  I 
did  not  prove  conclusively  that  his  father  did  not  consent 
to  his  enlistment,  nor  did  the  commandant  produce  a  particle 
of  evidence  showing  such  consent  had  been  given,  and  upon 
this  condition  of  the  testimony  the  case  was  submitted  to 
the  court. 

I  arffued  it  to  a  most  ridiculous  length  before  the  court, 
and,  no  doubt,  said  all  that  could  have  been  said,  and  a  good 
deal  more  than  could  be  well  said,  and  the  court  listened  ■ 
to  me  for  seven  hours  without  the  least  evidence  of  im- 
patience, and  then  decided  the  case  against  me.  The  only 
point  which  I  now  remember,  or  which  was  probably 
worth  remembering  in  my  argument,  "was,  that  as  I  had 
proved  the  infancy  of  my  client,  it  was  for  the  Government 
to  show,  as  a  condition  precedent  to  a  legal  enlistment,  that 
his  father  or  guardian  had  given  his  consent  to  the  enlist- 
ment, which  had  not  been  done.  While,  on  the  other  side, 
it  was  contended  that  it  must  be  presumed  that  the  enlist- 


CIRCUIT  SCENES.  41 

ing  officer  had  done  his  duty,  and  had  received  the  parental 
assent  before  he  would  accept  the  enlistment.  Ford  argued 
the  case  for  the  United  States. 

The  court  adjourned  for  dinner  durin^r  the  argument,  and 
when  I  saw  the  judge  going  off  with  the  commandant  to 
the  fort  for  dinner,  I  confess  I  felt  a  little  uneasy  that  some 
improper  influence  might  be  exerted  upon  the  judicial  mind, 
llidiculous  as  this  unworthy  thought  was,  I  may  find  a  very 
lame  excuse  for  it  in  the  burning  solicitude  which  a  young- 
lawyer  feels  in  his  case  at  the  very  commencement  of  his 
career,  for  no  purer  or  more  upright  man  ever  sat  upon  the 
judicial  bench  than  Judge  Young. 

In  the  month  of  June,  1834,  an  Irish  laborer  in  a  drunken 
fit  went  home  and  finding  something  wrong  in  his  domestic 
relations,  perhaps  because  his  supper  was  not  to  suit  him,  he 
manifested  his  dissatisfaction  by  giving  his  wife  a  beating, 
and,  not  being  in  a  condition  to  discreetly  measure  the  force 
he  employed,  she  died  from  its  effects.  An  autopsy  was 
held  upon  her  remains,  conducted  by  Dr.  Temple,  assisted 
by  Dr.  Kimberley,  Dr.  Harmon,  and  several  other  local  phy- 
sicians, and  they  reported  that  death  had  ensued  from  the 
blows  inflicted  by  her  husband,  and  the  coroner's  jury  held 
him  to  answer  for  murder;  this  was  the  first  autopsy  ever 
held  in  Cook  county,  so  far  as  I  could  learn.  I  was  applied 
to,  to  defend  him.  I  was  convinced  that  the  quo  animowns 
wanting  to  constitute  the  crime  of  murder,  and  that  the  true 
line  of  defense  was  to  make  the  homicide  a  simple  man- 
slaughter, and  addressed  myself  to  the  preparation  of  the 
case  upon  that  line. 

Sickness  prevented  me  from  attending  the  October  term 
of  the  court,  which  was  held  on  the  first  day  of  October, 
1834,  Judge  Young  presiding,  so  that  the  entire  defense  fell 
upon  my  ])artner,  Mr.  Collins,  who  adopted  the  same  line  of 
defense  which  I  had  fixed  upon  and  carried  it  further  than 
I  had  hoped  to.  The  indictment  ^vas  for  murder,  and  Mr, 
Ford,  the  state's  attorney,  being  convinced  that  he  could  not 
sustain  that  charge,  asked  for  a  conviction  for  manslaughter 


42  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

and  for  a  severe  punishment.  Mi*.  Collins  took  the  Ijold 
ground  that  he  could  not  bo  convicted  of  manslaughter 
under  that  indictment,  but  that  the  jury  must  convict  him 
of  murder  or  acquit  him  altogether.  This,  at  first  sight, 
might  seem  a  little  dangerous,  for  it  could  not  be  questioned 
that  a  brutal  homicide  had  been  committed  without  the  least 
justification,  and  there  Avas  danger  that  they  might  convict 
him  of  murder  rather  than  to  let  him  escape  altogether;  but 
this  vras  not  so  dangerous  a  course  as  would  at  first  appear, 
for  had  they  done  so,  there  "was  no  doubt  that  the  court 
would  have  granted  a  new  trial,  and  thus  have  saved  him 
from  capital  punishment, 

Collins  urged  his  position  with  such  persistency  and 
apparent  confidence  that  he  persuaded  Judge  Young  to  give 
the  instruction  which  he  asked,  and  thus  secured  the  com- 
plete acquittal  of  our  client. 

Kow,  Judge  Young  was  really  a  very  good  lawyer,  but 
he  manifestly  had  had  no  case  which  had  required  him  to 
investigate  that  particular  point  of  law  which  authorizes 
the  conviction  for  a  lower  grade  of  offense,  of  the  same 
class,  under  an  indictment  for  a  higher  grade,  as,  for  instance, 
manslaughter  for  murder,  an  assault  with  a  deadly  "weapon 
under  an  indictment  for  an  assault  with  intent  to  commit 
murder,  and  the  like. 

Mr.  Collins'  arguments  were  of  such  force  as  to  create  a 
doubt  in  the  mind  of  the  judge  on  this  point  of  law,  and  he 
gave  the  prisoner'  the  benefit  of  the  doubt.  Such  was  the 
result  of  the  first  trial  for  murder  in  Cook  county. 

It  also  liappened  that  I  tried  the  first  jury  case  ever  tried 
in  AYill  county. 

1  had  been  retained  to  defend  a  man  for  stealing  a  red 
overcoat  from  Tuttle  King,  who  at  that  time  kept  a  cloth- 
ing store  in  Chicago. 

A  violent  prejudice  seemed  to  exist  in  Chicago  against 
thieves  and  counterfeiters,  who  had  become  unpleasantly 
numerous  within  the  last  few  years,  so  that  it  seemed  to  me, 
as  I  often  expressed  the  opinion,  that  the  juries  here  were 


CIRCUIT  SCENES.  43 

SO  prejudiced  that  to  read  to  them  an  indictment  was  enough 
to  insure  conviction  of  the  prisoner;  that  they  seemed  to 
regard  an  indictment  which  had  been  found  by  a  grand 
jury  as  very  truth,  as  if  it  had  been  found  in  one  of  the 
gospels.  Indeed,  not  onh"  the  juries,  but  the  courts  seemed 
to  have  a  settled  prejudice  against  persons  indicted  for  that 
class  of  crimes,  and  the  only  chance  to  get  them  off  was 
upon  some  technical  point,  as  to  quash  the  indictment  or  to 
find  a  variance  between  the  counterfeited  instrument  offered 
in  evidence,  and  the  copy  set  forth  in  the  indictment,  and 
indeed  this  did  not  always  avail,  though  the  points  Avere 
well  taken. 

This  is  illustrated  in  the  case  of  Quigley  v.  The  People, 
3rd  Scam.  There  Quigley  had  been  indicted  for  passing  a 
counterfeit  bank  bill,  which  purported  to  be  set  out  in  hcec 
verVa  in  the  indictment.  There  it  was  set  out  to  be  payable 
to  B.  Ayrn,  or  bearer.  On  the  trial  the  counterfeit  bill 
offered  in  evidence  was  payable  to  B.  Aymor,  or  bearer,  and 
I  objected  to  the  admission  of  this  bill  in  evidence  because 
of  this  variance.  Most  undoubtedly  this  objection  was  well 
taken,  for  the  law  is  well  settled  that  the  least  variance 
between  the  copy  set  out  in  the  indictment  is  fatal  to  the 
admission  of  the  instrument  in  evidence.  But  Judge  Pear- 
son evidently  thought  that  my  man  was  guilty  anyhow,  and 
that  he  Avould  give  him  a  taste  of  the  penitentiary,  at  least 
until  his  judgment  could  be  reversed  by  the  Supreme  Court, 
so  he  admitted  the  instrument  in  proof.  My  man  was  con- 
victed and  sent  to  the  penitentiary.  The  error  was  so  pal- 
pable that  I  determined  to  take  the  case  up  and  have  it 
reversed,  but  Quigley  said  I  need  not  put  myself  to  that 
trouble,  for  he  could  get  out  of  the  penitentiary  by  his  own 
efforts  quicker  than  I  could  get  him  out  by  reversing  the 
judgment  in  the  Supreme  Court;  but  I  begged  him  to  stay 
there  until  I  could  take  the  matter  up,  and  get  it  reversed, 
which  would  only  require  a  few  months,  and  which  he  re- 
luctantly promised  to  do.  In  my  brief  in  the  Supreme 
Court  I  made  two  or  three  unimportant  points,  which  I  did 


44  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

not  expect  to  sustain,  beside  the  vital  one  of  variance.  To 
make  this  point  sure  I  had  been  very  careful  to  see  that  the 
copy  of  the  indictment  as  set  out  in  the  record  was  made  so 
exact  as  to  leave  no  question  on  that  point,  and  managed  to 
have  the  original  bill  ollered  in  evidence  pasted  into  the 
record  in  its  proper  place,  so  that  there  could  be  no  mistake 
about  that.  In  arguing  the  case  I  committed  the  fatal 
mistake  of  making  several  points  which  I  did  not  ex])ect  to 
sustain,  but  dealt  mostly  with  the  evidence,  which  I  did 
expect  to  sustain,  for  I  knew  the  law  was  with  me  on  that 
])oint. 

In  due  time  I  received  a  notice  from  the  clerk  of  the 
court  that  the  judgment  in  Quigley'scase  had  been  affirmed, 
whicli  set  me  almost  wild  with  astonishment,  and  when  I  re- 
ceived a  copy  of  the  opinion  written  by  Judge  Smith  my 
astonishment  was  in  no  whit  diminished  by  observing  that 
he  had  taken  up  and  discussed  and  decided  the  unimportant 
points,  which  I  had  thrown  in  as  a  sort  of  make-weight, 
against  me,  and  so  affirmed  the  judgment  without  taking 
the  least  notice  of  the  question  of  variance  more  than  as  if 
it  had  not  been  in  the  record  at  all. 

To  say  the  least,  I  thought  this  a  very  careless  way  of  ex- 
amining and  disposing  of  a  record,  or  disposing  of  a  point 
which  could  not  be  got  over,  if  it  had  been  noticed. 

I  was  obliged  to  inform  Quigley  of  the  decision,  and  that 
I  could  do  no  more  for  him. 

In  a  very  short  time  afterward  I  learned  that  a  ]:>risoner 
named  Quigley  had  escaped  from  the  penitentiary,  and  had 
taken  five  other  prisoners  with  him,  and  they  were  never 
heard  of  afterward  from  the  prison  authorities;  but  I  did 
learn  from  another  source,  somehow,  that  when  he  had  got 
his  friends  out  with  him  he  dare  not  leave  them  to  them- 
selves, but  took  charge  of  them  till  he  landed  them  in  the 
middle  of  Kentucky,  where  he  left  them.  They  traveled 
only  nights,  sustaining  themselves  on  millv  from  the  farmers' 
coAvs  on  the  way,  and  hiding  in  the  bottoms  duriug  the  day- 
time. 


CIRCUIT  SCENES.  45 

Now,  it  scoiiis  to  me  I  ^Ya.s  riglit  in  my  conclusion  that 
there  Avas  a  strong  prejudice  existing  against  tliat  ckiss  of 
citizens,  not  only  on  the  part  of  jurors  in  Chicago,  but  on 
the  part  of  the  courts  up  to  the  highest  in  the  State,  by 
reason  of  which  they  could  not  feel  assured  that  they  would 
have  the  law  fairly  administered  to  them,  and  when  that  is 
the  case  there  must  always  be  great  liability  that  innocent 
persons  will  be  convicted  of  crime. 

Hence  it  was  that  I  procured  a  change  of  venue  to  ~\Yill 
county,  in  Fox's  case,  and  to  try  him,  the  first  jury  ever 
called  m  the  Circuit  Court  of  Will  County  was  impaneled. 

There  was  present  in  court  Cj'rus  Walker,  a  very  distin- 
guished lawyer  from  Schuyler  county,  who  had  come  up 
to  make  acquaintances  and  attend  court  in  the  northern 
part  of  the  State.  I  invited  him  to  take  a  seat  with  me,  and 
assist  in  the  trial  of  Fox's  case,  and  thus  introduce  himself 
there.     He  did  so,  and  took  a  leading  part  in  the  trial. 

I  told  him  we  had  a  pretty  bad  case,  and  so  the  evidence 
on  the  part  of  the  people  proved  it  to  be.  Mr.  King  identi- 
fied the  red  overcoat,  which  had  been  stolen,  and  also  a  large 
black  overcoat,  which  had  been  found  on  him.  The  state's 
attorney  proved  that  Avhen  the  prisoner  was  arrested  on  the 
street  he  had  on  the  red  overcoat  and  over  it  the  black  one, 
Avhich  did  not  quite  cover  the  red  coat  at  the  ends  of  the 
sleeves,  and  by  this  carelessness  on  his  part  he  was  detected, 
and  at  the  time  he  had  explained  he  had  bought  the  over- 
coat of  somebody  else;  in  short,  this  was  the  State's  case. 
To  meet  this  we  produced  witnesses  who  proved  that  it  was 
frequently  so  cold  in  Chicago  in  July  (the  time  when  the 
arrest  was  made),  that  it  was  necessary  to  wear  two  over- 
coats to  be  comfortable,  and  this  was  the  only  defense  we 
could  present. 

AVe  argued  the  case  to  the  jury  at  considerable  length, 
and  AYalker  especially  declaimed  upon  the  climate  of  Chicago, 
and  commented  upon  the  prudence  of  the  prisoner  in  having 
bought  two  overcoats  to  protect  liimself,  and  warmly  com- 
mended his  example,  which  should  be  strictly  imitated  by 
every  one  who  had  a  regard  for  his  health  or  comfort. 


46        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Xow,  this  argument  to  a  jiiiy  of  Chicagoaus  would  have 
been  sure  to  have  sent  our  man  to  the  penitentiary  at  once 
for  a  long  term  of  years,  but  a  country  jury,  who  felt  no 
obligation  in  defending  the  reputation  of  the  place  as  a 
desirable  summer  resort,  some  of  whom  had  perhaps  ex- 
perienced the  chilling  effects  of  a  gale  sweeping  down  from 
the  north,  accepted  the  explanation  as  satisfactory,  and  so 
acquitted  the  prisoner. 

ISTow,  the  only  thing  which  my  client  had  to  pay  me  for 
my  fee  was  a  very  fine  two-year  old  colt,  which  was  at 
Brown's  country  tavern,  which  was  about  half  way  between 
Joliet  and  Chicago,  and,  as  we  all  returned  to  Chicago  in  the 
stage,  when  we  stopped  for  dinner  at  Brown's,  Fox  turned 
over  the  colt  to  me.  I  left  it  there  for  a  few  days  until  I 
could  send  for  it,  and  when  I  did  send  for  it  a  week  later, 
Mr.  Brown  said  that  the  thief  had  come  back  and  claimed 
the  colt,  and  was  about  to  take  it  away,  stating  that  he  had 
settled  my  fee  in  some  other  way;  but  Mr.  Brown  refused 
to  let  him  take  it,  and  so  I  got  the  colt  at  last. 

When  I  heard  this,  I  confess  that  my  confidence  in  his 
statement  that  he  had  purchased  the  coat  to  keep  him  com- 
fortable in  Chicago  in  July,  was  rudely  shaken. 

It  happened  also  that  I  tried  the  case  which  was  submit- 
ted to  the  first  petit  jury  ever  impaneled  in  Kane  county. 
It  was  Wilson  v.  Wilson. 

One  day  while  at  work  in  my  office  a  man  and  his  wife, 
way-worn  and  dusty,  entered,  and  sought  my  professional 
services  for  the  redress  of  a  grievance  which  they  had  suf- 
fered. Both  were  rather  undersized,  under  thirty  jenTs  of 
age,  very  poorly  clad,  and  were  what  may  be  justly  termed 
simple  people,  without  force  of  will  or  energy.  Their  story 
was  that  they  had  come  from  Buffalo  on  a  schooner,  which 
a  week  before  had  been  wrecked  about  two  miles  south  of 
this  city;  they  and  the  crew  had  been  all  landed  safely, 
after  a  hard  night's  experience  on  the  wreck,  but  they  had 
lost  everj^thing  except  what  was  on  their  persons.  The 
woman  was  evidently  enciente,  and  pretty  far  advanced. 


CIRCUIT  SCENES.  47 

After  a  day  or  two's  stay  in  the  town,  they  had  started  on 
foot  for  the  country,  and  when  in  the  prairie  about  two 
miles  beyond  Laughton's  Crossing-,  where  Riverside  now  is, 
they  had  met  a  drove  of  horses  from  Schuyler  county 
in  this  State,  belonging  to  one  AYilson,  who  was  in  charge, 
Avith  several  men  with  him.  Wilson  pretended  to  be  a 
sheriff,  and  to  have  a  warrant  for  their  arrest,  and  did  arrest 
them  and  detained  them  about  half  an  hour  in  the  prairie, 
but  finall}^  left  them,  nearly  frightened  to  death. 

After  they  had  somewhat  recovered  from  their  fright, 
they  turned  back,  and  stopped  at  Laughton's  house  at  the 
ford,  and  told  their  pitiable  story. 

Laughton  had  been  a  client  of  mine,  and  they  were  stren- 
uously advised  to  come  back  to  Chicago  and  state  their  case 
to  me,  with  the  confident  assurance  that  I  would  see  that 
justice  was  done  for  the  outrage.  This  they  did,  and  hence 
their  appearance  in  my  office  as  above  stated.  I  immedi- 
ately took  means  in  a  quiet  way  to  obtain  the  name  of  the 
owner  of  the  horses,  and  leader  of  the  gang,  who  was  yet  in 
town,  and  before  night  he  was  under  bail  to  appear  at  the 
next  term  of  the  Circuit  Court  to  answer  to  an  action  of 
trespass  and  false  imprisonment.  My  client's  names  were 
Wilson,  and  that  was  the  name  of  the  defendant. 

Mr.  Scammon  was  retained  for  the  defense.  He  succeeded 
in  getting  the  case  continued  for  one  or  two  terms,  and  then 
took  a  change  of  venue  to  Kane  county,  on  an  affidavit 
showing  that  the  people  of  Cook  county  were  prejudiced 
iigainst  his  client  so  that  he  could  not  have  a  fair  trial  here. 

Xo  doubt  there  Avas  considerable  prejudice  against  him 
in  the  town  of  Chicago,  for  1  had  taken  an  interest  in 
my  clients  more  than  professional,  and  had  taken  pains  to 
enable  them  to  get  a  support  which  they  so  much  needed. 

Dr.  Brainerd  and  1  had  been  students  in  Rome,  ]S".  Y.,  at 
the  same  time,  and  one  day  in  the  fall  of  1835  he  rode  up  to 
my  office  in  Chicago  on  an  Indian  pony,  and  stated  that  he 
had  come  here  for  the  purpose  of  jiracticing  his  profession. 
He  was  about  as  impecunious  as  I  had  been  on  my  first 


4S        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

arrival  hero,  and  I  at  once  offered  him  desk-room  in  my 
office,  and  assnred  him  that  I  woukl  do  all  I  could  to  intro- 
duce him  where  it  would  do  the  most  good.  He  went  out 
aud  sold  his  pony,  put  up  a  sign  alongside  of  mine,  and  this 
was  the  commencement  of  the  career  of  one  of  the  most 
distinguished  surgeons  and  physicians  who  have  cast  lustre 
on  the  medical  profession  of  Chicago,  and  the  founder  of 
Eush  Medical  College. 

He  was  in  the  office  at  the  time  Wilson  first  called  upon 
me  for  advice,  and  as  it  was  evident  that  a  doctor  woukl 
soon  be  wanted  as  well  as  a  lawyer,  I  introduced  him  to 
them,  and  he  took  an  immediate  interest  in  the  case.  Indeed, 
it  was  an  opportunity  not  to  be  neglected.  I  had  already 
introduced  the  doctor  to  Mrs.  John  H.  Kinzie,  and  several 
other  of  the  leading  families  on  the  North  Side,  and  he  in- 
terested himself  among  the  ladies,  whose  acquaintance  ho 
had  made,  telling  the  sad  story  of  the  poor  ca-staways,  and 
it  was  not  long  before  he  had  his  patient  comfortably  housed 
in  a  log  cabin,  and  induced  a  number  of  lady  acquaintances 
to  call  upon  her  to  see  Vfhat  they  could  do  for  her  comfort, 
and  when  the  time  arrived  she  had  been  well  provided  with 
a  bed,  and  an  abundance  of  comfortable  clothing,  and  many 
of  the  ladies  seemed  to  vie  with  each  other  in  calling,  and 
brin'^ing  provisions  and  delicacies,  to  an  extent  which  wealth 
could  hardly  have  purchased  in  Chicago  at  that  time.  At  the 
proper  time  Dr.  Brainerd  attended  to  the  case  with  a  skill  and 
assiduity  which  at  once  established  him  in  a  respectable  prac- 
tice, and  no  one  knew  better  than  he  how  to  cultivate  it  in  a 
proper  and  jn-ofessional  way.  It  may  be  well  appreciated  that 
in  the  little  town  of  Chicago,  as  it  was,  say  fifty -five  years  ago. 
a  case  in  which  so  many  ladies  had  felt  an  interest  would 
be  pretty  well  understood  by  a  large  proportion  of  the  peo- 
ple, and  if  the  jurv'  were  to  be  called  from  the  village  alone, 
I  think  it  v^ould  have  been  difficult  to  have  got  one  clear 
of  prejudice,  and  indeed,  Scammon  might  have  been  well 
justified  in  taking  the  change  of  venue. 

John  Pearson  had  been  elected  judge  of  this  circuit  at  the 
session  of  the  Legislature  (1830-37),  and  he  opened  his  first 


CIRCUIT  SCENES.  49 

court  at  Geneva,  on  June  19,  1837,  and  the  first  case  on  the 
ilocket  was  that  of  Wilson  v.  Wilson,  change  of  venue  from 
Cook  county.  I  had  found  a  witness,  who  from  a  distance  of 
half  a  mile  or  more  had  seen  the  plaintiffs  walking  on  the 
road  in  tlie  prairie,  when  they  were  met  by  the  defendant 
Avith  a  drove  of  horses;  that  the  defendant  with  several 
other  men  stopped  and  dismounted  from  their  horses  and 
seemed  to  surround  the  plaintiffs,  and  that  after  half  an 
hour  had  elapsed  they  remounted  their  horses,  gathered  up 
the  drove,  and  proceeded  with  them  toward  Chicago,  and 
that  after  the  ex]>iration  of  another  half  hour  the  plaint- 
iffs had  returned  along  the  road  to  Laughton's  house,  when 
they  appeared  to  be  in  a  much  demoralized  and  frightened 
condition.  At  that  time  the  parties  to  a  suit,  or  those  who 
had  even  a  remote  interest  in  the  result,  could  not  be 
allowed,  or  forced  to  testify,  so  that  what  actually  took 
place  at  the  time  of  the  stoppage  in  the  prairie  could  not 
be  explained  to  the  jury,  but  I  had  an  undoubted  right  to 
draw  the  most  unfavorable  inferences  against  the  defend- 
ants, which  could  be  justified  from  the  facts  proved,  and  I 
made  the  most  of  this  right.  It  is  easy  to  imagine  the  pic- 
ture which  I  drew  of  the  outrage  and  suffering  of  these 
\)ooY  people,  out  there  in  the  lonely  prairie,  at  the  hands  of 
these  beastly  and  lecherous  ruffians,  who  were  as  destitute 
of  sympathy  and  compassion  as  they  were  of  decency  and 
morality. 

I  also  took  out  with  me  Drs.  Brainerd  and  Goodhue,  and 
proved  by  them  the  dangar  to  the  woman  incurred  b}''  such 
outrages  as  that  complained  of. 

]^o  witnesses  were  introduced  for  the  defendants.  My 
intention  was  to  make  a  short  opening  of  the  case  a^nd  to 
make  my  great  effort  in  my  closing  speech,  but  as  I  arose  I 
cast  my  eye  toward  ]\fr.  Scammon  and  saw  at  once  that  he 
had  made  up  his  mind  that  if  I  only  made  a  formal  opening 
he  intended  to  submit  the  case  without  further  argument,  so 
I  instantly  changed  my  ])urpose,  and  went  at  it  in  earnest, 
going  over  the  whole  ground,  and  insisted  upon  a  verdict 


50  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

■which  would  not  only  compensate  them  for  the  injury  done 
them  as  far  as  that  could  be  done  with  money,  but  would 
also  teach  other  evil-doers  to  avoid  this  part  of  the  State  at 
least,  when  they  proposed  to  commit  such  crimes. 

This  forced  Scammon  to  address  the  jury  in  the  interest 
of  his  clients.  He  could  make  but  little  headway  in  his 
attempt  to  maintain  that  I  had  not  proved  a  technical  arrest 
and  trespass,  but  loudly  and  earnestly  insisted  that  the 
inferences  which  I  drew  as  to  the  extent  of  the  outrage  com- 
mitted were  entirel}^  gratuitous  and  not  true  in  fact.  He 
hardly  asked  for  an  acquittal,  but  his  great  effort  was  for  a 
nominal,  or  at  least,  a  small  verdict. 

The  jury  was  out  but  a  little  while,  when  they  returned 
with  a  verdict  of  "  guilty,"  and  assessing  the  plaintiff's  dam- 
ages at  $4,166.66,  which  amount  at  that  time  was  considered 
simply  enormous,  at  lea"st  in  this  part  of  the  State,  for  a  tres- 
pass to  the  person. 

Scammon  made  a  motion  for  a  new  trial,  which  was 
promptly  overruled,  and  judgment  entered  for  that  amount. 

So  it  was  that  I  tried  the  first  jury  cases  ever  tried  in  the 
Counties  of  Cook,  AVill  and  Kane. 

II. 

PKACTICE    IX    EAKLY     DAYS FOLLOWIXG    THE     CIRCUIT ITINER- 
ANCY  INCIDENTS. 

In  the  olden  time  in  Illinois,  say  prior  to  1850,  the  circuit 
system  of  practice  was  in  vogue  in  legal  life,  and  ])resented 
incidents  and  peculiarities  which  are  entirely  wanting  since 
the  country  has  become  more  populous.  With  the  growth 
of  the  cities  and  towns,  resident  lawyers  of  ability  and  learn- 
ing are  found  in  every  county  seat  at  least,  who  recpiire  no 
assistance  in  the  conduct  of  the  most  important  cases.  It 
was  not  so  in  the  early  days.  Then  the  few  local  lawj^ers 
who  had  settled  in  the  county  towns  were  generally  new 
comers,  without  experience  and  self-confidence,  and  both 
they  and  their  clients  depended  largely  on  the  assistance 


CIRCUIT  SCENES.  51 

from  abroad,  especially  at  the  trials  of  causes.  This  state 
of  things  necessitated  a  class  of  itinerant  lawyers  whose 
ability  and  experience  had  secured  to  them  reputations  co- 
extensive with  their  judicial  circuits,  and,  in  many  cases, 
throughout  the  State.  These  were  few  at  hrst,  but  with  the 
increase  of  po])ulation  and  business  their  numbers  increased, 
Avhile  their  theaters  of  action  became  more  circumscribed. 

At  first  they,  with  the  judge,  traveled  on  horseback  in  a 
cavalcade  across  the  prairies  from  one  county  seat  to  another, 
over  stretches  from  tifty  to  one  hundred  miles,  swimming 
the  streams  when  necessary.  At  night  they  would  put  up 
at  log  cabins  in  the  borders  of  the  groves,  where  thev  fre- 
quently made  a  jolly  night  of  it.  This  was  a  perfect  school 
for  story  telling,  m  which  Mr.  Lincoln  Ijecame  so  proficient. 
It  was,  indeed,  a  jolly  life  on  the  border,  the  tendency  of 
which  was  to  soften  the  asperities  and  to  quicken  the  sensi- 
bility of  human  nature.  Here  was  unselfishness  cultivated, 
and  kindliness  promoted,  as  in  no  other  school  of  which  I 
liave  knowledge. 

This  circuit  practice  required  a  quickness  of  thought  and 
a  rapidity  of  action  nowhere  else  requisite  in  professional 
practice.  The  lawyer  would,  perhaps,  scarcely  alight  from 
his  horse  when  he  would  be  surrounded  by  two  or  three 
clients  requiring  his  services.  Each  would  state  his  case  in 
turn.  One  would  require  a  bill  in  chancery  to  be  drawn. 
Another  an.  answer  to  be  prepared.  A  third  a  string  of 
special  pleas,  and  for  a  fourth  a  demurrer  must  be  interposed, 
and  so  on,  and  all  of  this  must  be  done  bgfore  the  opening  of 
the  court  the  next  morning.  Then  perhaps  he  would  be 
called  on  to  assist  in  or  to  conduct  a  trial  of  which  he  had 
never  heard  before,  just  as  the  jury  was  about  to  be  called, 
when  he  must  learn  his  case  as  the  trial  i)rogressed.  This 
requires  one  to  think  cpiickly  and  to  make  no  mistakes,  and 
to  act  promptly  to  take  advantage  of  the  mistakes  of  the 
adversary,  who  was  probably  similarly  situated.  It  is  sur- 
prising how  rapidly  such  practice  qualifies  one  to  meet  such 
emerirencies. 


52  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Those  early  settlers  had  not  much  money  to  pa}'"  lawyers' 
fees,  but  they  would  generally  pay  something  and  give 
notes  for  the  balance,  or,  perhaps,  turn  out  a  horse  or  a  colt 
in  payment.  These  would  probably  serve  to  pay  tavern 
bills,  and  a  horse  or  two  might  be  led  home  or  sold  on  the 
way.  Fee  notes  formed  a  sort  of  currency  at  a  county  seat 
about  court  time  and  could  frequently  be  sold*  to  a  merchant 
or  the  landlord  at  a  moderate  discount.  A  town  lot  or  an 
eighty  of  land  would  sometimes  be  taken  for  a  fee,  espe- 
cially when  it  had  been  a  part  of  the  subject-matter  of  the 
litigation. 

The  southern  part  of  this  State  was  first  settled,  and  so 
leg-al  tribunals  were  there  first  established.  The  first  set- 
tiers  were  mostly  immigrants  from  Kentucky  and  Tennes- 
see, with  some  from  Virginia  and  the  Carolinas,  though 
many  were  from  the  Eastern  States.  The  lawyers  from  the 
Southern  States  were  in  the  majority,  while  the  Eastern 
States  furnished  many  able  lawyers  as  well.  Among  the 
former  I  may  mention  S.  T.  Logan,  Judge  Young,  Arche 
AVilliams,  O.  H.  Browning,  Thomas  Ford,  J.  T.  Stewart,  J. 
J.  Harding,  Col.  Snyder,  and  many  others;  while  among 
those  from  the  East  I  may  name  Lockwood,  Breese,  Baker, 
Mills,  Kane  and  others.  All  of  these  men  would  have 
ranked  high  at  any  bar,  and  were  thoroughly  read  in  the  fun- 
damental principles  of  the  law.  Later  came  Lincoln,  Davis, 
Treat,  Douglas  and  Trumbull,  all  able  men.  It  may  be 
remembered  that  all  were  young  men  then  and  fond  of 
amusements  and  pastimes  and  practical  jokes,  and  after  the 
pressure  of  the  first  few  days  of  the  court  was  over,  they 
spent  their  evenings,  and  I  may  say  nights,  in  hilarity, 
which  was  at  times,  no  doubt,  boisterous.  For  instance, 
Benedict,  who  had  a  fog-horn  of  a  voice,  which  he  used 
most  recklessly  when  excited,  and  who  had  been  roaring  to 
a  jury  at  an  evening  session,  was  met  when  he  came  to  the 
tavern,  by  the  sheriff,  with  a  bench  warrant,  on  an  indict- 
ment "  for  making  loud  and  unusual  noises  in  the  night 
time,"  and  soon  a  court  was  organized  and  he  was  put  upon 


CIRCUIT  SCENES.  53 

liis  trial,  and  before  inidiiight  he  was  convicted  and  sen- 
tenced to  repeat  the  offense  in  arguing  a  motion  for  a  new 
trial,  or  to  ]iay  a  heavy  line,  upon  the  ground  that  two 
affirmatives  would  make  a  negative,  or  that  the  hair  of  the 
same  dog  Avould  cure  the  bite.  It  was  said  that  he  fairly 
outdid  himself  in  that  effort,  so  that  he  aroused  the  whole 
town  from  their  slumbers,  and  he  came  near  being  fined  for 
overdoing  it. 

Judge  Young  was  a  good  performer  on  the  fiddle  and 
thus  contributed  much  to  the  hilarity  of  circuit  life.  As 
the  settlements  extended  into  the  northern  ])art  of  the  State, 
this  circuit  system  of  practice  came  with  them,  and  for  a 
time  prevailed  in  all  of  its  pristine  beauty,  except  in  Chicago 
alone,  where  the  visits  from  foreign  lawyers  were  only  made 
upon  special  retainers  and  in  important  cases.  I  saw  Mr. 
Lincoln  here  several  times  engaged  in  important  cases. 

Under  the  old  circuit  system,  when  the  State  was  divided 
into  five  circuits,  and  a  circuit  judge  was  elected  for  each, 
John  York  Sawyer  was  judge  of  the  Vandalia  circuit.  He 
was  not  a  tall,  nor  a  very  stout  man,  but  carried  in  front 
about  the  largest  bay  window  for  his  size  I  ever  saw.  He 
presided  in  a  very  suave  way,  but  with  a  fixed  determina- 
tion to  do  ample  justice  and  without  a  very  scrupulous 
regard  to  forms,  es])ecially  if  those  forms  did  not  suit  him 
at  the  time.  It  was  related  to  me  that  on  one  occasion 
Hubbard,  who  had  a  considerable  practice,  argued  some 
question  before  him  at  great  length  and  with  great  confi- 
dence, and  concluded  Avith  an  air  of  assurance  which  de- 
clared that  he  knew  he  could  not  be  beaten  this  time.  The 
judge  in  his  decision  praised  Hubbard's  argument  and  fol- 
lowed it  all  the  way  through,  especially  emphasizing  the 
weakest  ])arts  of  it,  as  if  he  was  greatly  impressed  with 
them,  and  then  decided  against  him  without  stating  a  single 
reason  for  the  decision.  This  enraged  Hubbard  terribly, 
and  he  could  hardly  wait  till  court  adjourned  and  the  judge 
had  retired  before  he  gave  vent  to  his  indignation  to  the 
members  of  the  bar  and  other  by-standers,  in  terms  forcible 


54  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

if  not  elegant,  and  in  conclusion  he  said  :  "  I  tell  3^ou,  gen- 
tlemen, what  I  am  going  to  do  about  it,  and  so  you  may 
prepare  yourselves  with  smelling  bottles  or  cover  these 
streets  with  quick  lime;  I  am  going  right  now  to  hunt  up 
that  offensive  mass  of  bloated  humanity,  and  I  will  relieve 
his  corpus  of  a  peck  of  tadpoles  the  first  slash."  But  he 
did  not  do  it,  and  I  was  told  that  the  facetious  judge,  when 
told  of  it,  laughed  heartily  at  Hubbard's  rage,  regarding  it 
as  an  excellent  joke. 

Another  circuit  scene,  in  which  we  may  see  how  Judge 
Sawyer  administered  the  law,  may  be  given  as  it  was 
told  to  me  by  Judge  Ford,  soon  after  I  made  his  acquaint- 
ance, in  1834. 

At  the  time  of  which  he  spoke,  horse  thieves  were  pun- 
ished at  the  whipping  post,  and  Ford  always  insisted  that 
it  was  the  most  deferent  punishment  ever  inflicted  for  the 
punishment  of  crime.  He  said  he  had  often  seen  criminals 
receive  a  sentence  of  ten  years  or  more  in  the  penitentiary 
with  apparent  indifference,  but  he  had  never  seen  a  man 
sentenced  to  be  whipped  who  did  not  perceptibly  wince,  and 
that  the  most  hardened  would  turn  pale  and  shudder. 

A  man  who  had  been  indicted  for  horse  stealing,  had  re- 
tained General  Turney  to  defend  him.  The  general  struggled 
hard  for  his  client,  but  the  proof  was  so  clear  that  the  task 
was  hopeless,  and  the  jury,  after  a  short  absence,  returned  a 
verdict  of  guilty.  The  general  immediately  entered  a 
motion  for  a  new  trial  and  was  about  to  proceed  to  argue 
it,  when  the  dinner  bell  at  the  tavern  hard  by,  where  they 
all  boarded,  Avas  heard  loudly  calling  all  to  dinner.  Judge 
Sawyer,  as  I  have  said,  was  a  man  with  a  verj^  ]irotrudent 
stomach,  and  he  especially  prized  his  dinner.  The  judge 
interrupted  the  counsel,  saying :  "  General  Turney,  I  hear 
the  dinner  bell  now  ring,  so  the  court  will  adjourn  till  one 
o'clock,  when  I  shall  take  pleasure  to  hear  you  on  your 
motion  for  a  new  trial."  So  the  court  was  adjourned  till 
one  o'clock,  but  before  the  judge  left  the  bench  he  motioned 
the  sheriff   up  to  him,  and  in  a  determined  whisper,  said : 


CIRCUIT  SCENES.  55 

"  AVliile  I  am  gone  to  dinner  take  that  rascal  out  behind  the 
court  house  and  give  him  forty  lashes,  and  mind  you  lay 
them  on  well,  and  tell  him  if  he  is  ever  caught  in  this 
county  again  you  will  give  him  twice  as  much." 

After  the  Avhipping  the  culprit  was  turned  loose  and  was 
taken  charge  of  by  some  of  his  friends,  who  washed  him  off 
and  bathed  his  lacerated  back  with  wliiskey,  and  dressed 
him,  and  when  he  had  taken  some  dinner  he  hobbled  dowm 
the  street,  and  as  he  passed  the  court  house  he  heard  the 
general's  loud  voice  and  crossed  over,  and  soon  discovered 
he  was  earnestly  pleading  for  a  new  trial  in  his  case.  This 
horrified  him,  and  he  rushed  into  the  house  and  cried  out, 
"  For  God's  sake  don't  get  a  new  trial.  If  they  try  me  again 
they  will  convict  me  again,  and  then  they  will  whip  me  to 
cleath." 

The  general  stood  aghast  for  a  moment  and  said,  "  What 
does  all  this  mean  'i "  With  the  utmost  composure  the  judge 
replied:  "  Well,  General  Turney,  I  thought  we  would  make 
sure  of  what  we  had  got,  so  I  ordered  the  sheriff  to  whip 
that  rascal  while  we  were  at  dinner,  and  I  trust  he  has  done 
so.  But  go  on,  general,  with  your  argument,  for  I  am  in- 
clined to  be  with  yoii.  I  think  another  whipping  would  do 
him  good." 

III. 

TRIAL  OF  A    MURDEREE. 

In  tlie  year  1S32  there  lived  in  the  bottoms  of  the  San- 
gamon river  a  middle-aged,  rough  and  savage  man,  whose 
disposition  was  quarrelsome,  whose  habits  were  intern j^erate, 
and  whose  means  of  livelihood  were  suspicious.  In  fact,  his 
re])utation  was  bad.  He  lived  in  a  small  log  cabin  with  a 
truck  patch  near  by,  which  was  grown  up  to  weeds  more 
than  to  vegetables,  and  he  had  a  small  field  of  corn  sur- 
rounded by  a  slash  fence,  which  was  badl}'^  cultivated  by 
his  wife  and  children^of  whom  there  were  several — about 
as  rough  as  himself.     The  children  grew  up  wild  and  un- 


56  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

kempt.  He  had  an  old  vragon,  a  plow,  one  co\v  and  sereral 
young  cattle  growing  up,  and  a  small  drove  of  hogs  which 
ran  in  the  bottoms  and  lived  on  mast.  A  few  chickens 
scratched  around  the  old  log  stable  and  a  couple  of  hounds 
completed  the  inventory  of  the  effects  owned  by  the  settler, 
if  we  add  to  it  the  inevitable  long  barreled  rifle,  by  means 
of  which  most  of  the  meat  was  supplied.  This  hopeful  voter 
when  in  his  cups  in  Springfield,  picked  a  quarrel  with  a 
peaceable  citizen  and  killed  his  man.  He  was  indicted  for 
the  murder,  and  employed  Gen.  Adams,  an  old  lawyer,  who 
had  not  professedly  quit  practice,  though  most  of  his  prac- 
tice had  quit  him.  But  he  was  still  smart  enough  to  look 
out  for  the  main  chance,  so  he  drew  up  a  bill  of  sale  cover- 
ing every  possible  thing  about  the  prisoner's  place,  except 
the  wife  and  chddren,  which  was  duly  executed,  and  a  few 
days  before  the  trial  he  sent  some  men  up,  who  brought 
away  every  movable  thing  which  they  could  find — except 
the  old  bed  and  table,  which  were  not  worth  bringing— the 
cow  and  the  calves,  the  horse,  the  wagon  and  the  plow,  the 
hogs  and  the  chicks.  As  the  poor  woman  stood  in  the  cabin 
door  with  her  little  brood  of  children  gathered  around  her  and 
saw  everything  driven  away  but  the  hounds,  it  is  said  that 
she  actually  shed  tears;  accustomed  as  she  was  to  hardship 
and  privation  she  now  felt  a  desolation  which  she  had  never 
known  before,  and  perhaps  for  the  first  time,  a  sigh  of  grief 
escaped  her. 

Well,  the  trial  came  off  and  his  counsel  did  the  very  best 
he  could  for  his  client.  He  pictured  in  eloquent  terms  to 
the  jury,  the  wife  and  children  mournfully  bowed  down  in 
prayer  for  the  deliverance  of  the  husband  and  father,  whose 
destinies  were  now  placed  in  their  hands.  It  was  for  them 
to  say  whether  he  should  return  a  free  man  to  gladden  his 
humble  home  Avith  his  presence  once  more,  or  whether  it 
should  ever  remain  as  one  of  desolation,  without  support, 
and  without  hope. 

The  general's  eloquence  was  of  no  avail;  perhaps  the  jury 
had  heard  of  the  manner  in  which  the  genei'al  had  collected 


CIRCUIT  SCENES.  07 

hir,  fee,  which  must  have  tended  to  pluck  the  feathers  from 
the  sympathetic  expressions  poured  forth  in  the  counsel's 
eiJfort. 

The  jury  found  the  prisoner  guilty  and  he  was  sentenced 
to  be  hanged. 

About  that  time  the  papers  Vv'ere  full  of  accounts  of  the 
marvelous  pro})erties  of  electricity.  It  was  said  to  l)e 
capable  of  actually  resuscitating  dead  persons,  and  the  doc- 
tors of  Springfield  determined  to  experiment  on  this  suljject, 
and  made  arrangements  with  the  sheriff  to  give  them  the 
body  as  soon  as  it  should  be  cut  down,  that  they  might  test 
the  elRcacy  of  electricity  in  an  attempt  to  restore  the  dead 
to  life.  The  sheriff  determi  ned,  however,  that  the  test  should 
be  real  and  no  humbug,  so  he  kept  the  subject  hanging  for 
a  ffood  half  hour.  So  soon  as  it  was  cut  down  it  was  hurried 
away  to  a  doctor's  office,  Avhere  the  culprit's  counsel,  with 
several  other  lawyers,  were  invited  to  be  present  to  witness 
the  experiment. 

The  subject  was  quickly  stretched  on  a  table,  and  the  poles 
of  a  powerful  galvanic  battery  were  applied  to  various  parts 
of  the  body.  The  eyelids  were  made  to  wink,  arms  and 
legs  were  made  to  strike  and  kick,  though  feebly,  but  the 
luno^s  and  heart  obstinatelv  refused  to  act,  and  finally  the 
doctors  had  to  admit  that  their  efforts  were  as  futile  to 
restore  the  man's  life  as  had  been  those  of  the  lawyer  to 
save  it.  The  sheriff  had  done  his  job  too  well.  It  was  then 
proposed  to  examine  and  see  what  had  been  the  effect  of  the 
fatal  noose  upon  the  neck,  so  they  went  to  work  and  removed 
the  skin  from  the  neck. 

During  all  of  these  operations  Gen."  Adams  had  been 
leaning  on  his  cane  looking  upon  this  scene  with  a  long  and 
sorrowful  face,  for  he  was  not  accustomed  to  the  scenes  of 
the  dissecting  room,  and  near  him  stood  Ben.  Mills,  one  of 
the  most  eloquent  and  witt}'  lawyers  who  ever  ])racticed  in 
Illinois. 

At  length  Adams  turnetl  to  Mills,  and  said: 

'•  Brother  Mills,  it  is,  indeed,  a  sad  sight  16  see  a  fellow 


58        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

mortal,  who  is  made  in  the  image  of  God,  tlms  miitihated 
and  cut  up  as  if  lie  were  a  brute  beast." 

"  Yes,  yes,"  said  Mills,  "  It  does  look  pretty  bad,  no 
doubt,  but  for  your  consolation,  brother  Adams,  I  may  say 
that  it  is  ver}^  seldom  that  a  lawyer  has  the  pleasure  of  see- 
ing his  client  twice  skinned." 

The  old  man  gave  a  sudden  twitch  as  if  he  had  felt  a 
bodkin  stuck  into  him,  and  then  slowly  turned  around,  his 
eyes  rolling  as  if  in  pain,  and  said: 

''  Brother  Mills,  if  it  is  just  the  same  to  you,  I  would 
rather  you  would  not  say  that  any  more." 

I  tell  the  tale  as  it  was  told  to  me. 

IV. 

CIRCUIT     COURT    HELD    BY    THREE    JUSTICES    OF    THE     PEACE THE 

LEAD  MINERS STORIES  OF  BENCH  AND  BAR. 

There  is  a  small  chapter  of  judicial  history  of  Illinois, 
which  it  may  be  well  to  record  in  these  later  days  lest  it  be 
entirely  forgotten,  and  that  is  that  a  Circuit  Court  was  once 
held  by  three  justices  of  the  peace. 

On  the  27th  of  February,  1827,  an  act  was  passed  organizing 
the  county  of  Jo  Daviess,  and  placing  it  in  the  first  judicial 
circuit.  In  section  4  of  that  act  this  provision  was  made : 
''  In  case  the  judge  of  the  Circuit  Court  of  said  county  can 
not  attend  at  any  regular  term  of  said  court,  it  shall  be  his 
duty  to  notify  the  clerk  of  said  court  of  the  same,  who  shall 
immediately,  on  receiving  such  information,  notify  all  the 
justices  of  the  peace  of  said  county;  and  it  shall  be  the  duty 
of  the  justices  of  the  peace,  or  any  three  of  them  on 
receiving  such  notice,  to  attend  and  hold  said  Circuit  Court 
-;f  -K-  *  (provided  that  when  sitting  they  shall  have  the 
same  jurisdiction  as  Circuit  Courts,  except  capital  cases).  " 

The  isolated  condition  of  this  county  more  than  sixt}^ 
years  ago,  separated  from  the  settled  portions  of  the  State 
by  great  distances,  and  the  necessity  for  legal  tribunals  for 
settling  disputes  involving  large  pecuniary  interests  grow- 


CIRCUIT  SCENES.  59 

ing-  oiit  of  the  lead  mines  which  had  been  discovered  and 
Avere  then  kxrgely  wor]i;ed,  no  doubt  suggested  this  necessity 
for  some  extraordinary  provision  to  insure  the  holding  of 
the  Circuit  Court,  in  case  the  judge  of  the  first  circuit 
should  be  unable  to  attend;  and  no  doubt,  though  the  emer- 
gency which  gave  rise  to  that  provision  of  law  ceased  to 
exist,  and  went  out  of  mind  and  was  cpiite  forgotten,  so  far 
as  I  have  been  able  to  discover,  it  has  never  been  repealed; 
and  if  that  be  so,  it  is  still  the  law,  and  the  judge  of  that 
circuit  might  give  the  necessary  notice  of  his  inability  to 
attend,  and  that  court  might  still  be  held  by  three  or  more 
justices  of  the  peace  of  that  county.  Placing  the  county 
in  another  circuit,  and  providing  for  a  judge  to  hold  the 
courts  in  that  new  circuit,  could  not  have  the  effect  to  repeal 
this  portion  of  the  statute,  any  more  than  another  portion 
which  created  the  county  of  Jo  Daviess.  In  pursuance  of 
this  law  the  first  Circuit  Court  in  Jo  Daviess  county  was  held 
by  three  justices  of  the  peace. 

In  order  that  I  might  be  sure  that  my  information  on 
this  point  was  correct  I  wrote  to  J.  C.  CXeill,  Esq.,  clerk 
of  the  Circuit  Court  of  that  county,  for  information  on  the 
subject,  and  received  from  him  the  following  reply:  "  Our 
records  show  that  the  first  term  of  the  Circuit  Court  in  this 
county  was  begun  and  held  on  Monday,  the  second  day  of 
June,  A.  D.  1S2S.  The  judge  of  the  circuit  not  appearing, 
and  the  justices  having  been  notified,  the  following  justices 
])resided:  John  Conley,  Hugh  R.  Colter  and  Abner  Field. 
The  attorney-general  not  attending  nor  deputing  any  per- 
son to  prosecute  for  him,  the  court  appointed  Jonathan  H. 
Pugh  to  prosecute  for  him.  At  this  term  Thos.  Bennett 
was  foreman  of  the  grand  jury.  The  first  judge  who  ap- 
pears to  have  presided  here  was  Richard  M.  Young,  at  a 
term  begun  and  held  on  Thursday,  the  eleventh  day  of  May, 
1S29." 

When  the  tract  of  country  north  of  the  Illinois  river, 
and  especially  the  militar}^  tract,  became  settled  up  to  a  con- 
siderable extent,  the  necessities  for  legal  tribunals  made  it 


60  EARLY  BENCH  AND  BxVR  OF  ILLINOIS. 

imperativ^e  that  more  judicial  force  should  be  brought  into 
requisition  than  the  four  justices  of  the  Supreme  Court 
could  afford,  so,  on  the  eighth  of  Januar}^,  1829,  a  law  was 
passed  providing  for  the  election  of  a  circuit  judge,  who 
should  preside  in  the  circuit  to  which  he  might  be  ap- 
pointed north  of  the  Illinois  river,  and  fixing  his  salary  ac 
$750  a  year.  No  law  was  ever  passed  expressly  creating 
the  fifth  circuit,  but  it  was  inferentially  created  by  the  law, 
and  was  passed  the  19th  of  January,  1829,  which  named 
tlie  counties  which  would  constitute  the  fifth  circuit,  of 
which  Jo  Daviess  was  one,  and  providing  that  Kichard  M. 
Young  should  hold  the  courts  in  that  circuit. 

Most  of  the  lead  seekers  who  constituted  the  population 
of  Jo  Daviess,  went  up  the  Mississippi  river  from  the 
southern  part  of  the  State.  Their  practice  was  to  go  np  in 
the  spring  and  work  at  lead  mining  during  the  summer,  and 
to  go  down  the  river  in  the  fall  and  spend  the  winter  in  a 
warmer  climate.  This  annual  migration  up  and  down  the 
river,  corresponded  exactly  with  the  habits  of  a  fish  found 
in  the  Mississippi,  well  known  as  sucker,  and  hence  that 
appellation  was  a])plied  to  those  migratory  miners,  and  was 
soon  thereafter  a]iplied  as  a  general  name  to  the  inhab- 
itants of  the  State.  I  am  aware  tliat  some  ])arties  have 
sought  to  change  the  orthography  of  the  word  to  "  succor  "  as 
being  more  complimentary  at  least,  but  this  is  the  origin  of 
the  word  as  given  me  when  I  first  came  to  the  State,  fifty- 
five  years  ago,  and  I  have  no  doubt  of  its  truth. 

These  justices  of  the  peace,  as  well  as  the  constables  and" 
sheriff,  were  elected  from  among  the  miners.  Many  of 
these  were  Irishmen,  whose  enterprise  pushed  them  where- 
ever  hard  work  was  to  be  done,  and  a  reasonable  reward  for 
it  was  to  be  obtained.  Even  then,  they  were  not  averse  to 
holding  office,  and  so  the  sheriff  and  justices  of  the  peace 
were  all  of  that  nationality,  and  were  said  to  as  well  enjoy 
keeping  the  peace  by  breaking  it,  as  in  any  other  way. 
Disputes  about  mineral  claims  soon  aro33,  many  of  them 
involving  large  pecuniary  amounts.     These  had  to  be  set- 


CIRCUIT  SCENES,  61 

tied  bv  legal  tribunals  as  soon  as  they  were  establish c.l 
there,  and  so  invited  the  presence  of  able  lawyers.  Among 
those  practicing  there  when  I  came  to  the  State  I  may  men- 
tion Ben  Mills,  and  James  M.  Strode,  who  was  in  command 
of  the  militia  at  Galena,  in  1S^>'2,  when  martial  law  was 
there  declare  1. 

As  the  time  for  holding  the  court  ap])roached,  it  being 
understood  that  Judge  Young  would  not  be  present  to  open 
the  court,  the  justices  of  the  peace  who  were  to  perform  that 
duty,  applied  to  Mr.  Mills  for  information  as  to  how  they 
should  proceed.  This  facetious  gentleman  gave  them  all 
necessary  information  as  to  the  mode  of  ];roceeding,  and 
especially  he  enjoined  upon  them  to  maintain  the  dignity  of 
the  court  at  all  hazards,  and  especially  to  allow  no  one  to 
address  the  court  without  special  permission,  or  when  called 
upon.  This  part  of  their  duties  was  particularly  dwelt  upon, 
and  above  all  others  was  treasured  up  in  their  memories. 

Among  the  other  members  of  the  bar  present  when  the 
court  was  opened,  was  an  Irish  lawyer  named  Nagle. 
Being  ambitious  to  be  first  to  place  his  name  upon  the 
records  of  the  court,  so  soon  as  that  august  tribunal  was  pro- 
claimed by  the  sheriff  to  be  open,  Nagle  jumped  to  his  feet 
and  made  some  motion.  The  presiding  justice  at  once  ordered 
him  to  take  his  seat,  and  not  to  open  his  mouth  again  until 
his  betters  had  spoken;  that  he  must  learn  to  respect  the 
dignity  of  the  court,  and  not  to  speak  again  until  he  was  called 
upon.  Xagle  felt  himself  greatly  outraged  at  Ijeing  thus 
summarily  sup])ressed,  and  with  great  animation  declared : 
"It  seems  to  me  that  your  honor  is  damnal)]y  impregnated 
with  dignity  this  mornin'."  The  court  was  now  more  shocked 
than  ever  at  this  new  affront  to  its  dignity,  and  at  once 
ordered  the  unlucky  attorney  to  be  hastened  to  jail,  and 
there  to  remain  until  he  learned  respect  to  his  betters,  and 
subject  to  the  further  order  of  the  court.  The  burly  sheriff 
at  once  seized  the  unluck}"  offender,  and  in  spite  of  his 
uproarious  protests  hustled  him  off  to  the  log  jail,  where  he 
was  told  he  would  have  to  live  on  bread  and  water  for  an 


G2  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

indefinite  time,  and  a  constable  was  ]")]aced  in  charge  of  tlie 
prisoner  to  see  that  he  did  not  pull  the  jail  down  or  crawl 
through  some  of  the  cracks. 

After  this  the  business  of  the  court  went  on  with  ^reat 
regularity.  Mr.  Mills,  as  the  oldest  member  of  the  bar  pres- 
ent, was  first  called  upon  to  make  himself  heard,  and  then 
the  other  members  of  the  bar  according  to  their  seniority. 

Mills  appreciated  that  his  crammings  had  been  but  too  Avell 
relished,  and  he  at  once  interested  himself  to  get  poor  Xagle 
out  of  his  scrape,  which  he  found  no  easy  task.  In  his  name 
and  on  his  behalf  he  made  most  abject  apologies,  and  ex- 
pressed the  greatest  contrition,  which  JN'agle  himself  would, 
no  doubt,  have  repudiated  had  he  known  of  them  at  the 
time.  He,  however,  did  get  him  released  after  a  day  or 
two's  confinement,  and  it  was  never  heard  after  that,  that 
the  court  had  ever  cause  to  complain  of  any  disrespect  to  its 
dignity,  when  held  by  those  justices  of  the  peace. 

This  was  the  relation  as  given  me  by  Judge  Young 
himself,  as  he  heard  it  in  Galena,  when  he  held  his  first  court 
there.  He  further  said  that  after  he  had  opened  the  court 
the  lawyers  got  up  one  after  the  other  and  made  their  mo- 
tions, and  the  business  proceeded  in  the  usual  quiet  way. 
After  he  adjourned  court  for  noon,  while  he  was  walking 
up  to  the  tavern  for  his  dinner,  he  Avas  accosted  by  one  of 
those  same  justices  of  the  peace.  Avho  said  :  ''  Well,  Judge, 
I  see  those  laAvvers  are  having  dorad  foine  times  here  Avitli 
you."  "  Oh,  yes,"  replied  the  judge,  "  we  are  getting  along 
very  finely,  I  think."  "  Yes,  yes,"  said  the  justice,  "  but ' 
doni  'em,  when  v>'e  held  court  we  made  'em  squat." 

V. 

PKAGTICE    IN    ANOTHER    COUNTY— DEFENSE    OF    ONE     ACCUSED    OF 

THEFT. 

In  the  spring  of  1S35, 1  determined  to  extend  my  practice 
to  Putnam  county,  which  was  a  large  county  tlien,  and  the 
oldest  settled  in  the  northeast  part  of  the  State.    I  started  on 


CIRCUIT  SCENES.  63 

horseback  from  Chicago,  and  on  my  way  from  Ottawa  to 
Hennepin  I  fell  in  with  Thomas  Ilartzel  and  George  B. 
Willis,  both  of  whom  I  had  met  in  the  first  political  conven- 
tion ever  held  in  Illinois.  It  met  at  Ottawa,  on  the  4th  of 
March,  1834.  Dr.  David  Walker,  of  Ottawa,  was  president, 
and  I  was  secretary.  We  nominated  one  senator  and  one 
representative  for  the  district,  embracing  all  of  the  north 
part  of  the  State,  including  Peoria.  I  was  glad  to  meet  them 
again.  They  both  were  old  residents  of  Hennepin.  I  ex- 
plained to  them  that  I  was  going  to  attend  their  court,  and 
inquired  as  to  the  amount  and  character  of  the  business  in 
the  court  and  of  the  lawyers  Avho  usually  attended.  They 
said  there  was  right  smart  of  business  there,  and  there  was 
talk  of  more,  and  some  of  it  pretty  important,  and  that 
there  were  some  criminal  cases  on  the  docket;  that  there 
was  but  one  lawyer  in  Hennepin,  a  young  man  just  come  in, 
named  Thomas  Atwater,  who  had  never  been  in  court  yet. 
They  would  be  glad  to  help  me  all  they  could.  There 
Avas  a  man  in  jail  for  larceny,  and  if  I  could  get  him  off  it 
would  make  me  famous. 

"  Probably,"  said  I,  "  the  man  is  guilty  and  the  proof 
clear;"  if,  so  the  condition  to  success  which  they  suggested 
was  rather  hard. 

They  said  it  did  appear  to  be  a  pretty  bad  case,  as  one 
witness  swore  that  he  saw  the  prisoner  steal  the  goods,  and 
that  he  had  confessed  before  the  magistrate  that  he  did 
steal  them.  But  he  had  friends  in  the  town  that  still  had 
their  doubts  about  his  guilt,  and  there  was  quite  a  general 
feeling  that  there  was  a  sort  of  mystery  about  it  that 
needed  explanation,  which  might  be  possible  with  shrewd 
management. 

But  he  was  not  my  client,  and  I  saw  no  likelihood  that  he 
ever  would  be.  True,  he  was  poor  and  unable  to  fee  a 
lawyer,  else  those  from  abroad,  Avho  had  been  in  the  habit 
of  practicing  there,  would  surely  be  employed.  If  the  court 
should  have  to  assign  him  counsel  I  might  stand  some 
chance,  as  the  young  lawyers  are  most  likely  to  be  selected 


64  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

who  have  no  other  business  in  court.  But  Judge  Breese 
was  to  hold  the  court,  and  I  had  never  met  him,  and  he 
might  not  think  it  safe  to  intrust  the  case  even  ]]artially 
in  my  hands.  I  stopped  at  the  tavern  kept  by  my  friend 
Willis,  and  in  which  the  larceny  had  been  committed.  I 
was  industrious  making  the  acquaintance  of  everybody  1 
could  meet. 

The  judge  and  several  lawyers  put  in  an  appearance  in  the 
afternoon  of  the  day  after  my  arrival,  and  I  soon  made  their 
acquaintance;  I  tried  to  be  unassuming,  but  not  restrained. 
At  first  I  thought  Judge  Breese  was  a  little  reserved,  but 
when,  on  comparing  notes,  we  discovered  that  we  both  came 
from  Utica,  N.  Y.,  his  bearing  seemed  more  cordial.  He 
had  left  there  sixteen  years  before,  I  had  come  from  there 
but  two  years  before,  and  he  had  many  things  to  inquire 
about  relative  to  his  old  home,  and  of  course,  I  could  tell 
him  much  that  was  interesting  to  him. 

He  opened  court  the  next  morning  in  an  unfinished  frame 
building  and  organized  the  grand  jury,  Avho,  in  the  course  of 
an  hour,  brought  in  a  true  bill  against  Pierce  for  grand 
larceny.  The  state's  attorney  at  that  time  was  James 
Grant,  of  Chicago,  now  Judge  Grant,  of  Davenport,  Iowa. 
Pierce  was  soon  brought  into  court,  when  the  judge  asked 
him  if  he  had  counsel,  and  lie  replied  that  he  had  not,  and 
had  nothing  with  which  to  pay  a  lawyer,  and  in  answer  to 
an  inquiry .  of  the  court  he  expressed  a  wish  that  counsel 
might  be  assigned  him. 

The  judge  then  asked  me  if  I  would  undertake  the  pris- 
oner's defense,  assisted  by  Mr.  Atwater,  if  he  would  consent 
to  assist  in  representing  the  prisoner.  .  We  both  consented 
and  were  allowed  to  take  our  client  out  of  doors  and  confer 
with  him  in  the  shade  of  a  tree.  I  then  told  Pierce  that  the 
first  thing  for  him  to  do  was  to  tell  us  the  exact  truth,  for 
if  he  was  guilty  we  could  make  a  much  better  defense  for 
him  if  we  knew  it,  and  all  of  the  attendant  circumstances, 
and  that  if  he  were  innocent,  it  was  all  important  that  we 
should  knovf"  it,  certainly. 


t^lDNKV   r.HEESE. 


CIRCUIT  SCENES.  65 

He  then  asserted  in  the  most  solemn  manner  that  ho  was 
entirely  innocent  of  the  larceny,  and  his  explanation  of  his 
confession  of  guilt  was,  that  after  the  larceny  had  Ijoen  dis- 
covered, and  the  goods  had  been  fonnd  in  a  trunk  which 
belonged  to  him  or  his  wife,  she  had  come  to  him  and  told 
him  that  Thompson  had  persuaded  her  to  join  him,  in  steal- 
ing the  goods,  and  that  they  together  had  taken  them  from 
the  box  and  jmt  them  in  the  trunk;  that  under  this  pres- 
sure, and  in  order  to  give  his  wife  a  chance  to  escape  to 
Cincinnati,  where  her  mother  lived,  he  had  confessed  he 
stole  the  goods.  That  after  he  had  made  the  confession, 
Thom])3on  had  come  up  and  swore  that  he  saw  him  steal 
them.  That  Thompson  was  a  bully  and  a  ruffian,  and 
everybodv  was  afraid  of  him. 

The  story  was  told  in  such  a  way  as  to  convince  us  both 
of  its  entire  truth.  Pierce  was  evidently  a  simple-minded, 
rather  a  weak-minded  man,  who  could  be  persuaded  to  do 
anything  by  an  artful,  and,  probably,  a  bad  woman. 

But  how  were  Ave  to  prove  the  truth  ?  The  conviction 
that  he  was  innocent  made  us  anxious  to  prove  it  if  tlie 
proof  existed.  We  had  but  little  time  to  prej^are  the 
defense — to  rake  up  every  thread  and  every  circumstance 
which  carefully  woven  together  might  tend  to  prove  his 
innocence,  for  the  trial  was  set  for  the  next  morniup-. 
Whatever  was  to  be  done,  must  be  done  in  a  fcAv  hours. 

The  first  ray  of  light  we  got  was  from  Pierce  himself 
who  said  he  was  sick  on  the  night  of  the  theft — so  sick 
indeed  that  he  could  not  have  loft  his  bed. 

Following  this  clew  we  got  the  name  of  the  doctor  who 
attended  liini  and  of  an  old  woman  who  had  nursed  him 
that  night. 

AVe  now  felt  that  we  had  made  some  progress  and 
separated  till  after  dinner.  In  the  meantime  Atwater  Avas 
to  find  the  doctor  and  the  nurse  and  get  their  stories. 

I  walked  down  the  street  alone  toward  my  hotel,  medi- 
tating. My  attention  was  presently  attracted  by  a  subdued 
voice,  and,  as  I  looked  up,  I  saw  a  man  coming  toward  me 


QQ  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Avith  a  quick  step.  When  he  came  up  he  asked  me  if  I  wns 
to  defend  Pierce.  I  told  him  that  I  was.  "Well,"  said 
he,  "  he  is  innocent;  and  if  you  will  go  a  mile  and  a  half  on 
the  other  side  of  the  river  you  will  come  to  a  loghouse,  in 
which  live  a  couple  named  Fitzgerald,  They  know  some- 
thing to  help  you.  Good  day,  sir,"  and  he  turned  quickly 
and  walked  away,  looking  about  him  as  if  ho  was  afraid  of 
being  seen. 

I  ate  m}^  dinner  hastily,  took  my  saddle-horse,  and  soon 
crossed  the  river  on  the  ferry-flat  and  galloped  awa}^  across 
the  river  bottom  till  I  reached  the  blulf,  where  I  found  the 
log  cabin.  When  I  entered  the  house  I  inquired  of  the  good 
woman  who  met  me  if  her  name  was  Fitzgerald.  She  said 
it  was.  I  told  her  that  I  was  appointed  by  the  court  to 
defend  Pierce  on  a  charge  of  larceny;  that  I  was  convinced 
of  his  innocence,  and  understood  that  she  and  her  husband 
knew  something  about  it.  She  was  evidently  not  pleased 
with  ray  visit,  and  at  first  denied  knowing  anything  about 
it,  and  said  people  got  along  best  who  minded  their  own 
business, 

I  represented  to  her  the  enormity  of  the  crime  of  letting 
an  innocent  man  go  to  the  penitentiary  on  the  testimony  of 
a  perjured  scoundrel  like  Thompson,  who  was  himself  the 
thief,  and  that  she  could  never  sleep  well,  if  she  refused  to 
tell  what  she  knew  that  would  save  an  innocent  man  and 
shield  the  guilty  one;  that  if  she  did  this  the  ghosts  of  in- 
nocence would  haunt  her  all  her  life,  and  that  I  would  see 
that  Thompson  left  the  country  quick  or  went  to  the  peni-- 
tentiary  so  that  he  could  harm  no  one. 

She  began  to  weaken  at  last  and  finally  went  out  and 
called  her  husband.  He  showed  the  same  reluctance,  and  I 
had  to  go  over  with  my  reasonings  and  persuasions  again 
with  both. 

At  length  they  fairly  gave  in  and  the  old  lady  said  she 
would  tell  me  all  about  it;  let  what  would  come,  she  woukl 
not  have  innocent  blood  on  her  hands. 

She  said  that  the  night  of  the  larceny  she  and  her  hus- 


ancuiT  SCENES.  67 

band  slept  in  a  bed  at  the  bead  of  the  stairs;  that  during  the 
nioJit  thev  heard  a  noise  in  a  room  below:  that  thev  l)oth 
got  up  and  carefully  crept  down  the  stairs,  and  there  they 
saw  through  the  cracks  in  the  lathing  not  yet  plastered, 
this  man  Thom])son  and  Mrs.  Pierce  take  the  goods  out  of 
the  box  and  put  them  in  the  trunk  where  they  were  found, 
and  that  Pierce  was  not  tliere  at  all.  They  both  promised 
to  come  to  the  court  the  next  morning  and  tell  all  they 
knew  if  the  devil  stood  at  the  door, 

I  was  now  happy  and  made  ver}''  fast  time  l)ack  to  town 
and  was  quick  in  sending  the  sheriff  over  with  a  subpoena 
f^r  both  to  make  sure  work  of  it. 

I  now  felt  sure  that  we  would  acquit  our  man.  Of  course, 
not  a  word  was  lisped,  even  to  Pierce,  of  the  witnesses  I 
liad  found ;  my  absence  had  been  unaccountable  to  Atwater, 
till  told  of  the  result,  when  we  met  after  my  return.  Then 
I  learned  that  he  had  found  the  doctor  and  the  nurse,  and 
that  they  would  both  be  on  hand  and  testify  that  Pierce  was 
too  sick  that  night  to  have  left  his  bed  and  committed  the 
larceny. 

I  did  not  sleep  very  soundly  that  night,  for  I  was  too 
busy  thinking  up  the  speech  I  would  make  to  the  jury.  It 
was  manifest  that  the  more  I  should  abuse  Thompson,  the 
better  it  would  take  with  everybody,  for  he  was  both  hated 
and  feared,  and  the  man  w^ho  dared  to  abuse  him  roundly 
would  do  a  ]5opular  thing,  and  then  when  I  should  have 
proved  his  perjury  and  larceny,  all  would  admit  that  he 
would  deserve  all  I  could  give  him.  I  piled  up  all  of  the 
bitterest  epithets  I  could  think  of,  whicli  I  would  hurl  at 
him  in  such  a  deluge  as  would  even  make  him  hate  him- 
self. 

I  had  no  fear  of  personal  violence  from  him,  bully  as  he 
professed  to  be.  I  was  young  (twenty-three  years  old),  and 
weighed  190  pounds,  was  active  and  of  exceptional  strength, 
and  felt  perfect  confidence  in  my  ability  to  take  care  of  my- 
self. He  seemed  about  fifty  years  of  age,  and  to  weigh 
about  175  pounds. 


6S  EAIiLY  BENCH  AND  BAR  OF  ILLINOIS. 

4 

We  were  promptly  on  hand  at  the  opening  of  the  court 
the  next  morning,  and  soon  after  liatl  the  satisfaction  of 
seeing  the  nurse  and  doctor  appear  and  take  back  seats,  and 
shortly  after  Mr.  and  Mrs.  Fitzgerald  came  in  and  mingled 
with  the  crowd  of  spectators  who  now  began  to  iill  the  little 
court  room,  Avhile  many  more  were  seen  on  the  outside,  as 
if  a  considerable  interest  was  felt  in  the  ])roceeding,  for  it 
was  generally  understood  that  Pierce's  trial  was  to  be  the 
first  real  business  transacted.  We  had  been  strictly  silent 
as  to  the  evidence  we  had  discovered,  but  somehow  there 
seemed  to  be  a  general  ex]iectation  that  souie  imjiortant  de- 
velopments might  be  made. 

I  was  especially  gratified  to  observe  that  Thom])son  was 
there.  He  took  a  front  seat,  with  an  air  of  confidence,  if 
not  of  defiance,  befitting  that  of  a  bold  thief  and  a  bully 
who  was  ready  to  commit  perjury  to  cover  up  his  crime. 

Pierce  had  been  brought  in  and  was  seated  beside  us  at 
the  bar,  which  consisted  of  a  plain  deal  table  about  six  feet 
long  and  three  feet  wide.  He  was  pale  and  nervous  and 
fairly  shivered  from  weakness  resulting  from  his  recent  sick- 
ness and  confinement  in  the  little  log  jail.  He  felt  that 
though  innocent  he  was  already  condemned.  He  could  see 
no  way  of  esca])e,  for  we  had  felt  it  our  duty  to  conceal  our 
discoveries  from  him  as  well  as  all  others,  for  Thompson 
must  on  no  account  get  the  least  inkling  of  them,  i 
encouraged  our  client  with  the  positive  assurance  that  lie 
would  be  acquitted,  and  finally  that  we  had  found  evidence 
which  would  clearly  show  his  innocence.  Tliis  helped  him 
some,  but  it  coukl  not  entirely  dispel  his  despair.  I  did  not 
regret  this,  for  his  woe-begone  appearance  was  a  powerful 
appeal  to  all  for  sympathy  and  pity,  which  of  itself  would 
liave  been  of  great  service  in  a  doubtful  case.  As  yet  the 
jurors  were  dispersed  among  the  crowd  and  must,  to  a  cer- 
tain extent,  partake  of  their  feelings. 

When  the  case  was  called  we  announced  our  readiness  for 
trial,  a  jury  was  soon  impaneled,  and  the  state's  attorney 
made   a  short  opening.     He    stated    that    the  trial  was  a 


CIRCUIT  SCENES.  GO 

mere  form,  wliicli  the  lavr  required  before  the  prisoner 
could  be  sent  to  the  ])enitentiary.  That  he  wouhl  ])r<n't' 
so  clear  a  case  that  it  would  not  be  necessary  to  leave  their 
seats  before  returning  a  verdict  of  guilty. 

The  usual  practice  then  Avas  for  the  defense  to  state  its 
case  at  this  point,  but  we  requested  the  favor  to  postpone 
this  till  after  we  had  heard  the  testimony  for  the  people. 
This  was  granted  without  objection, 

Mr.  Grant  proved  that  the  goods  were  nailed  up  in  a  dry- 
goods  box  in  an  unfurnished  room  in  the  hotel,  and  that 
they  were  subsequently  found  in  a  trunk  belonging  to  the 
Drisoner.  He  then  proved  that  the  prisoner  had  confessed 
to  the  magistrate  that  he  stole  the  goods,  and  he  proved 
their  value.  He  then  called  Thompson,  who  took  the  oath 
with  a  sort  of  indifferent  swagger  and  toolc  the  stand.  He 
swore  without  the  least  hesitation  that  he  saw  Pierce  when 
he  took  the  goods  from  the  box,  and  placed  them  in  the 
trunk,  and  that  he  saw  him  lock  the  trunk. 

"NVe  had,  as  yet,  cross-examined  none  of  the  people's  wit- 
nesses. But  not  so  with  Thompson.  He  was  cross-ex- 
amined in  such  a  wav  as  to  make  him  swear  to  evervthino- 
in  the  most  positive  way  with  every  detail  of  time  and 
place,  and  as  to  Pierce's  every  motion  and  action.  He  was 
well  acquainted  with  him  and  could  not  be  mistaken,  but 
he  scarcel}^  knew  Mrs.  Pierce  and  had  not  seen  her  that  day. 
He  swore  that  Pierce  seemed  well  and  strong,  for  he  had 
broken  open  the  box,  and  removed  the  goods  in  a  way  that 
sJiowed  he  was  in  a  hurry,  and  needed  no  one  to  help  him. 

Every  step  of  the  cross-examination  seemed  to  strengthen 
the  case  against  us,  as  I  intended  it  should,  by  ena1)ling 
Thompson  to  make  up  as  consistent  a  story  as  possible  by 
weaving  all  of  the  lies  into  it  that  were  necessary  to 
make  it  consistent,  and  especially  such  lies  as  I  knew  I 
could  contradict  him  in,  and  before  I  had  finished  I  had  a 
perfect  mountain  of  them;  for,  as  the  case  was  going  along 
so  smoothly,  he  thought  he  had  everything  his  own  way, 
and  could  tell  what  he  pleased  without  our  being  able   to 


70       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

detect  it.  If  he  had  had  old  lawyers  to  deal  with,  or  less 
simple  ones,  he  would,  no  doubt,  have  been  much  more 
cautious. 

When  I  dismissed  the  witness  he  left  the  stand  with  a 
wa-:*-  of  the  head  and  an  air  of  confidence  and  satisfaction 
that  he  made  no  effort  to  conceal.  The  j  ury  looked  positively 
distressed,  and  the  audience  manifested  their  disappointment 
and  chagrin  at  the  ineffective  way  in  which  I  had  cross- 
examined  Thompson,  for  their  only  hope  was  that  he  could 
be  broken  down  on  cross-examination,  for  all  believed  he 
was  lying  all  the  time;  in  fact,  that  I  had  given  away  all 
of  the  case  there  was  to  give  away. 

I  then  arose  to  state  the  defense  we  expected  to  make.  I 
stated  that  as  it  now  looked,  the  statement  of  Mr.  Grant  in 
his  opening,  that  this  trial  would  be  but  a  matter  of  form, 
and  only  to  satisfy  the  forms  of  the  law  before  sending  the 
prisoner  to  the  penitentiary,  seemed  justified;  but  we  ex- 
pected to  make  it  a  matter  of  substance,  and  that  Pierce 
would  not  be  the  man  to  go  to  the  penitentiary  for  that 
larceny. 

I  first  explained  why  the  confession  was  made.  That 
after  the  larceny  was  discovered  and  the  goods  found  in  the 
trunk  and  a  great  commotion  was  being  made  about  it,  Mrs, 
Pierce  had  come  to  her  husband  and  in  great  distress  told 
him  that  Thomi)son  had  persuaded  her  to  join  him  in  steal- 
ing the  goods  and  that  they  two  had  stolen  them  and  put 
them  in  that  trunk.  That  she  implored  him  on  her  kaees 
to  do  something  to  divert  attention  from  her  until  she  could 
go  to  her  mother  in  Cincinnati.  That  overcome  by  her  tears 
and  entreaties,  he  had  consented  to  confess  the  larceny  him- 
self and  trust  to  the  future  for  the  result,  although  by  so 
doing  Thompson  would  have  an  opportunity  to  escape  pun- 
ishment also. 

That  this  man  Thompson  was  a  bully  and  a  braggart  and 
boasted  of  the  terrible  things  he  had  done  to  his  enemies 
and  had  actually  so  terrorized  many  of  the  good  people  of 
the  town  that  those  who  knew  the  truth  of  the  matter  had 


CIRCUIT  SCENES.  7 1 

deemed  it  prudent  to  keep  their  mouths  shut.  Tliat  wc  liad, 
however,  succeeded  in  finding  two  most  credible  witnesses, 
Avho  actually  saw  Thompson  and  this  woman  steal  the  goods, 
and  that  we  would  prove  by  the  doctor  and  the  nurse  that 
Pierce  was  very  sick  on  the  night  when  the  goods  were 
stolen,  and  coidd  not  possibly  have  got  up  and  committed 
the  theft. 

Tliompson  had  placed  himself  as  nearly  before  me  as  he 
could  during  my  opening,  and  loolced  fiercely  and  defiantly 
at  first.  I  occasionally  glanced  at  him  with  a  quiet  and 
satisfied  smile.  Before  I  closed,  his  countenance  was  a  real 
picture.  The  time  for  the  epithets  had  not  come  yet,  so  I 
did  not  use  them,  but  contented  myself  with  stating  the 
simple  facts  in  terms  as  short  as  would  suffice  to  do  so. 

My  little  speech  had  evidently  produced  the  desired  efi'ect. 
An  expression  of  relief  was  manifest  on  every  countenance. 
Even  the  judge,  who  had  hitherto  appeared  as  impassive  as 
a  block,  brightened  up  and  leaned  forward  as  if  to  catch 
every  word,  and  when  I  sat  down,  he  straightened  up  and 
looked  around  with  an  expression  which  seemed  to  say  :  "  If 
all  of  this  be  true,  this  Thompson  must  be  the  greatest  villain 
remaining  on  this  earth  unhung."  Before,  he  seemed  to  have 
taken  no  interest  in  the  case.  Kow  he  was  awakened  to  a 
lively  interest. 

He  said,  ''  Mr.  Caton,  call  your  witnesses,"  in  a  tone  which 
clearly  manifested  his  impatience  to  hear  the  evidence,  which 
should  prove  such  total  depravity  in  a  human  being. 

I  first  called  the  doctor,  who  testified  that  he  had  attended 
the  prisoner  and  visited  him  late  in  the  evening  of  the  night 
when  Thom))son  swore  he  saw  Pierce  steal  the  goods.  I 
made  the  direct  examination  very  short.  I  just  proved 
what  I  expected  to  by  him,  and  leaving  it  to  the  cross-ex- 
amination to  bring  out  the  thousand  little  incidental  facts 
which  I  knew  would  strengthen  the  case  more  in  that  way 
than  if  brought  out  by  me.  A  vigorous  attempt  to  break 
down  the  testimony  of  a  witness  on  cross-examination,  if  it 
fails,  strengthens  the  case   immeasurably.     1  really  think 


72  ExiRLY  BENCH  AND  BAR  OF  ILLINOIS. 

that  the  state's  attorney  believed  that  the  doctor  had  ex- 
aofo-erated  the  man's  sickness,  and  hence  he  went  at  him 
rather  fiercel}^  but  my  man  seemed  to  have  grown  sicker 
and  sicker  as  he  progressed  and  gave  all  of  the  details  of 
the  case. 

It  was  manifest  that  I  had  succeeded  in  completely  break- 
ing down  Thompson's  terrorism,  and  it  seemed  to  me  that 
the  doctor  was  anxious  to  shov>^  that  he  did  not  care  a  but- 
ton for  him. 

I  next  called  the  nurse,  and  she  testified  that  she  had  been 
with  the  prisoner  almost  the  entire  night  referred  to.  She 
shoAved  him  to  have  been  fully  as  sick  as  the  doctor  had 
done.  That  he  had  suffered  very  much  and  was  so  Aveak 
that  he  could  not  turn  in  l)ed  without  help.  That  she  was 
positively  certain  that  he  did  not  leave  the  room  that  night, 
and  that  he  could  not  have  done  so  had  his  life  depended 
on  it.  She  further  stated  that  ]\Irs.  Pierce  did  not  come  near 
her  husband  during  all  of  that  terrible  night,  and  had  not 
been  seen  in  his  room  since  some  time  in  the  afternoon  be- 
fore. It  was  evident  that  the  state's  attorney  now  began 
to  appreciate  that  there  might  be  something  real  in  this 
defense  and  that  it  was  not  impossible  that  he  was  relying 
upon  perjured  testimony  to  convict  an  innocent  man.  His 
cross-examination  of  the  nurse  was  sliort  and  formal. 

I  now  called  Mrs.  Fitzgerald,  who  came  forward  with  a 
firm  stej3  and  firm  look  which  manifestly  said  she  was  no 
longer  afraid  of  Thompson.  She  told  how  she  and  her  hus- 
band were  sleeping  in  the  chamber  near  the  head  of  the 
stairs,  when  about  midnight  they  were  awakened  by  a  noise 
in  the  room  below,  when  they  both  got  up  and  crept  softly 
down  the  stairs,  on  which  they  seated  themselves,  and  plainly 
saw  through  the  crack  "in  the  lathing,  this  man  Thompson, 
whom  she  pointed  out,  and  Mrs.  Pierce,  take  the  goods  from 
the  dry -goods  box,  carry  them  across  the  room  and  place 
them  in  the  trunk.  AYhen  the  trunk  seemed  full  they  closed 
and  locked  it  and  Mrs.  Pierce  put  the  key  in  her  pocket; 
then  both  took  the  trunk  and  carried  it  to  a  corner  of  the 


CIRCUIT  SCENES.  73 

room  and  left  it;  that  there  wa,s  one  candle  in  the  room; 
Avhen  the  trunk  was  set  down  they  hastened  back  to  theii- 
bed  without  waiting  to  see  when  or  where  Thompson  and 
Mrs.  Pierce  went. 

In  this  case  there  was  a  cross-examination  on  the  matter 
of  identity,  but  it  only  served  to  convince  every  one  that 
the  woman  knew  what  she  was  talkino;  al)out,  and  that  it 
was  certainh"  Thompson  and  Mrs.  Pierce  that  she  saw  steal 
the  goods. 

I  next  called  Mr.  Fitzgerald,  and,  as  I  have  often  observed 
in  other  cases,  "  the  gray  mare  proved  the  better  horse;" 
still,  he  corroborated  his  wife,  which  was  all  I  wanted  of 
him,  though  not  with  the  decision  and  firmness  which  she 
had  manifested.  But  I  cared  nothing  for  that;  I  kneAv  that 
Ave  already  had  enough  testimony  in  to  convince  every 
rational  mind  that  Pierce  was  an  innocent  man  and  that 
Thompson  was  a  very  wicked  liar.  With  this  witness  Ave 
closed  our  case.  Mr.  Grant  proposed  to  submit  it  to  the 
jury  Avithout  argument. 

But  Ave  could  not  think  of  throwing  away  such  an  o]3por- 
tunity  and  merely  said  that  Ave  had  a  duty  to  i)erform  to 
the  prisoner,  Avhich  Ave  could  not  omit,  and  must  present 
our  vicAvs  of  the  case  to  the  jury. 

The  state's  attornev  then  oi)ened  the  case  IjrieflA',  thoufli 
he  did  as  AA^ell  as  any  man  could  have  done.  It  Avas  mani- 
fest he  felt  that  the  defendant  Avas  innocent,  and  that  he 
Avas  asking  the  jury  to  convict  him  upon  perjured  testi- 
mony. 

Atwater  followed  Avitli  his  maiden  speech,  which  AA'as  a 
very  good  one.  He  grouped  the  testimony  together  very 
systematically,  and  shoAved  how  each  part  supported  every 
other,  all  pointing  to  the  absolute  innocence  of  the  accused. 
My  turn  to  address  the  jury  noAv  came.  As  I  arose  I  felt 
as  if  every  friend  1  had  in  the  world  Avas  whispering  to  me 
that  I  must  noAv  make  a  supreme  effort,  not  so  much  for  mv 
client,  for  he  Avas  noAv  safe,  but  for  myself.  In  fact,  I  Avas 
fairly  saturated  Avith  my  subject,  and  the  danger  Avas  that  I 


74        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

should  slop  over  and  say  too  much  or  not  at  the  right  time, 
or  in  the  right  way,  rather  than  I  should  omit  anything.  I 
began  in  a  very  quiet  and  moderate  way,  stating  that  Mr. 
Atwater  had  so  well  and  so  fully  presented  the  case  that, 
in  truth,  he  had  left  little  for  me  to  do.  I  presented  the 
testimony,  however,  in  my  own  way,  first  considering 
our  own  testimony,  showing  Pierce's  absolute  innocence, 
and  then  took  up  the  testimony  relied  upon  for  the  people, 
explaining  the  reasons  for  the  confession  as  before  stated,  and 
referring  to  the  circumstances  which  showed  that  that 
explanation  was  true,  dwelling  upon  Pierce's  enfeebled 
condition  from  recent  sickness  and  his  poverty,  from  wliich 
he  was  unable  to  employ  counsel  to  defend  him  or  buy  him 
a  supper  after  they  should,  by  their  verdict,  set  him  free.  I 
then  took  up  the  testimony  of  Thompson,  when  I  began  to 
warm  up  to  my  work  in  earnest. 

It  was  evident  that  the  public  temper  demanded  all  of  the 
liard  things  that  could  be  said  of  him.  I  showed  that  when 
Pierce  lay  sick  unto  death,  when  he  required  and  had  a  right 
to  claim  the  most  constant  and  devoted  care  of  the  wife  who 
had  sworn  before  God  at  his  sacred  altar  to  cleave  only  unto 
him,  this  black-hearted  villain  had  seduced  her  from  her 
allegiance  to  him,  in  the  hope  that  he  might  die  from  her 
neglect,  and  then,  in  order  to  place  her  the  more  completely 
in  his  lustful  power,  as  well  as  for  gain,  had  persuaded  her 
to  join  him  in  the  perj^etration  of  this  crime,  and  when,  in 
spite  of  her  neglect,  he  had  refused  to  die  and  became  con- 
valescent, and  the  larceny  had  been  discovered  and  the  law 
was  searchino-  for  the  thief,  he  had  concocted  that  diabolical 
plot  and  sent  the  weeping  and  apparently  penitent  woman 
to  her  enfeebled  husband  to  persuade  him  to  confess  the 
crime.  This  plot  was  but  too  successful,  and  when  the  sick 
man  had  given  his  every  cent  of  money  to  enable  her  to 
escape,  which  she,  no  doubt,  divided  with  her  paramour,  and 
was  sent  to  the  jail,  then  it  was  that  this  fiend  in  human 
form  fairly  made  the  devils  blush,  by  boldly  standing  up  and 
swearincj  tliat  he  saw  Pierce  steal  the  goods !     If  he  could 


CIRCUIT  SCENES.  75 

swear  Pierce  into  the  penitentiary  for  a  term  of  years,  the 
lielpless  Avonian  would  be  completely  in  his  power  and  he 
could  enjoy  her  society  at  his  will  without  the  interference 
of  her  enfeebled  husband. 

While  I  was  in  the  midst  of  this  tirade,  I  turned  partly 
around  to  catch  an  expression  of  the  audience,  and  discovered 
behind  me,  and  not  more  than  two  feet  from  me,  this  man 
Thompson,  with  a  heavy  bludgeon  in  his  hand,  the  perspira- 
tion pourino^  from  his  face,  his  eye  glaring  fiercch^  at  me 
with  a  terribly  fiendish  expression  on  his  countenance.  I  at 
once  concluded  that  he  had  crept  up  there  in  order  to  make 
a  deadly  assault  upon  me,  when  my  back  was  to  him.  To 
say  that  this  made  me  terribly  angry  is  to  put  it  mildly. 
That  was  one  of  the  few  times  in  my  life  when  I  have  been 
really  mad.  I  felt  instantly  inspired  with  a  superhuman 
strength,  which  would  enable  me  to  crush  any  living  man 
to  the  earth  in  a  moment.  I  glared  upon  the  supreme 
scoundrel,  a  look  of  scorn  and  detestation  and  defiance, 
which  I  was  told  later  seemed  fit  to  wither  a  statue.  I 
pointed  my  finger  in  his  very  face,  and  called  upon  the  court 
and  jury  to  look  at  the  cowardly  assassin,  who  had  not  the 
courage  to  attack  a  child  in  the  face,  but  must  skulk  up  be- 
hind so  he  could  strike  unseen.  I  then  proceeded  to  pour 
upon  him  denunciations  and  epithets  which  rushed  upon  me 
faster  than  I  could  utter  them.  Terrible  words  of  execration 
seemed  to  coin  themselves,  and  I  poured  them  out  with  the 
rapidity  of  a  tornado,  constantly  emphasizing  them  by  tierce 
gesticulations  right  into  his  face,  which  was  now  red  and 
now  pale  like  the  changing  flashes  of  a  boreal  light.  Some 
of  these  anathemas  have  been  ringing  in  mv  ears  ever  since. 
Their  bare  memory  makes  me  shudder.  AVhat,  then,  must 
have  been  their  effect  when  poured  out  under  such  excite- 
ment ? 

The  culprit  stood  this  for  a  little  while  with  a  bold 
defiant  expression,  as  if  looking  for  a  good  time  to  strike, 
but  soon  he  began  to  weaken  and  show  doubt  and  hesi- 
tancy.    This  expression  grew  upon  him  more  and  more  for 


76        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

several  minutes,  when  he  backed  toward  the  door  through 
the  dense  crowd,  who  shrunk  from  his  touch  as  if  he  hiul 
been  a  slimy  snake.  I  called  upon  the  state's  attorney  to 
prosecute  the  perjured  thief,  now  that  he  knew  for  a  cer- 
tainty who  was  the  guilty  party.  I  called  upon  the  sheriff 
to  arrest  the  scoundrel  before  he  should  reach  the  woods 
and  hide  his  guilty  head  in  the  bushes.  I  called  on  all 
good  citizens  to  scorn  and  spit  upon  so  loathsome  a  wretch. 
I  advised  all  decent  women,  whenever  they  saw  him,  to 
bar  their  doors  and  Avindows  as  against  a  leper,  whose  very 
breath  was  contamination,  and  I  kept  shouting  after  him 
in  this  unseemly  way,  till  he  was  fairly  out  of  sight.  I 
then  paused,  and  turned  around  and  was  silent  for  a  few 
minutes,  and  then  every  man  in  the  court  room,  except  the 
judge,  was  on  his  feet  and  seemed  half  bewildered.  I  at 
length  apologized  to  the  court  for  the  unseeml}^  exhibition 
which  I  made  in  a  presence  where  dignity  and  moderation 
should  always  reign,  but  I  hoped  he  would  find  in  the  scene 
which  had  provoked  me  some  apology  for  the  breach  of 
decorum  of  which  I  was  conscious  I  had  been  guilty. 
After  a  moment's  pause  Judge  Breese  remarked,  "  You  can 
proceed,  Mr.  Caton."  I  then  turned  to  the  jury  and  apol- 
ogized to  them  for  having  for  a  moment  forgotten  myself 
and  the  presence  in  which  I  was,  under  a  provocation  which 
miffht  have  excited  an  older  man.  I  then  said  the  evidence 
lia,d  made  the  prisoner's  innocence  so  manifest  that  I  did 
not  think  that  his  interest  required  that  I  should  longer 
detain  them. 

The  state's  attorney  then  closed  the  case  with  a  short 
speech,  which  virtually  gave  it  up  and  left  it  for  the  jury 
to  say  which  of  the  witnesses  they  would  believe  and  which 
they  would  disbelieve. 

The  jury  retired  without  any  charge  from  the  judge  and 
in  a  few  minutes  returned  Avith  a  verdict  of  not  guilty. 

The  verdict  was  received  with  a  manifestation  of  approval 
which  was  sternly  checked  by  the  court,  when  it  was  entered, 
the  prisoner   discharged  and  the  court   adjourned  at  once. 


CIRCUIT  SCENES.  77 

Then  followed  a  scene  of  hand  shaking  very  unusual  at  that 
time  in  a  western  assemblage.  Pierce  was  congratuhited 
and  we  were  congratulated,  not  only  by  the  jury  but  by 
every  one  else  who  could  get  near  us. 

At  length  the  room  began  to  clear  and  we  were  able  to 
move  toward  the  door.  I  was  immediately  surrounded  by 
clients  anxious  to  secure  my  services,  and  before  I  reached 
my  hotel  I  was  retained  in  nearly  every  case  pending 
in  the  court,  and  in  several  important  ones  to  be  com- 
menced. Two  of  these  were  chancery  suits,  which  proved 
in  the  end  to  be  of  more  real  benefit  to  me  than  any  other 
cases  I  ever  was  employed  in. 

AVhen  I  left  that  town  I  took  away  with  me  about  one 
hundred  and  fifty  dollars  in  money  and  about  the  same 
amount  in  o-ood  notes,  which  in  those  davs  of  small  fees  was 
considered  as  doing  extraordinarily  well  for  a  Ijeginning,  in 
a  court  which  lasted  less  than  a  week.  ]\Iore  than  that,  I 
had  been  very  fortunate  in  getting  on  the  right  side  and  so 
had  won  nearly  every  case,  which  gave  me  a  reputation 
which  was  of  more  value  than  all  of  the  rest. 

When  I  inquired  for  Thompson  he  had  disappeared  and 
no  one  could  tell  Vv'here  he  had  gone  and  I  could  never  learn 
that  he  was  ever  seen  or  heard  of  in  that  town  afterward. 

After  the  court  adjourned  the  term,  we  all — that  is,  tlie 
judge  and  several  lawyers,  made  our  way  to  Ottawa  on 
liorse-back,  where  the  next  court  was  to  be  held.  At  that 
time  western  hostclries  had  not  attained  to  that  state  of 
refinement  which  places  ablution  furniture  into  sleeping- 
rooms,  but  all  had  to  go  down  stairs  and  wash  in  a  tin 
basin  placed  on  a  bench  outside  the  house.  AVhen  I  came 
down  from  my  room  the  morning  after  our  arrival,  I  had 
my  coat  and  vest  on  my  arm,  that  I  might  be  ready  for  the 
toilet  process,  which  was  to  be  performed  outside.  When  I 
reached  the  bar  room,  or  office  as  it  would  now  be  called, 
the  first  man  I  saw,  Avas  that  same  villain  Thompson  Avith 
that  same  alpine  stick  in  his  hand. 

"  You  old  villain,"  said  I,  "  Avhat  are  you  here  for  ?  Has 
not  the  sheriff  got  you  under  lock  and  key  yet  'i " 


78  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

"  I  have  come  up  here  to  give  you  a  thrashing,"  said  he: 
''  you  insulted  me  tlie  other  day  and  I  have  come  to  settle 
it.'" 

I  dropped  my  coat  and  vest  onto  a  chair  and  stepped  up 
close  to  him  and  said  that  now  was  the  time  to  begin.  That 
I  had  no  fears  of  one  so  steeped  in  crime.  That  so  black  a 
villain  must  necessarily  be  a  coward,  and  I  again  over- 
whelmed him  with  e])ithets.  I  knew  if  he  was  going  to 
strike  at  all  he  would  have  done  it  on  the  instant.  A  mo- 
ment's hesitation  was  fatal  to  his  purpose.  I  spoke  in  a 
pretty  loud  voice,  and  directly  a  crowd  gathered  around,  to 
whom  I  related  his  villainy,  and  who  soon  manifested  signs 
of  hostility.  On  perceiving  this,  he  turned  and  made 
directly  for  the  door,  and  made  quick  tracks  out  of  the  town, 
and  I  have  never  seen  or  heard  of  him  since. 

VI. 

CHANCERY  SUITS SUIT    AGAINST    COL.    STEAWN EARLY  DAYS  ON 

THE  BENCH. 

In  my  last  I  spoke  of  two  retainers  which  I  received  at 
Hennepin  upon  my  first  attendance  upon  the  Circuit  Court 
there.  As  the  conduct  of  these  cases  resulted  in  the  great- 
est professional  benefits  to  me,  it  may  be  well  to  speak  of 
them  more  particularly.  These  benefits  did  not  consist  so 
much  in  the  amount  of  compensation  which  I  received  as  in 
the  amount  of  learning  which  I  obtained  in  their  manage- 
ment. Both  were  suits  in  chancery,  which  were  filed  to 
enforce  resulting  trusts.  Up  to  that  time  I  had  not  paid 
particular  attention  to  cl]ancery  laAV,  and  had  had  but  little 
experience  in  that  branch  of  the  profession.  The  first  was 
Babb  V.  Strawn.  In  this  case  a  bill  had  been  filed  b}'"  Mr. 
Peters,  of  Peoria,  to  compel  Col.  Strawn  to  convey  to  the 
complainant  the  town  site  of  Lacon,  then  in  Putnam  county, 
upon  the  ground  that  the  land  had  been  entered  with  the 
complainanfs  money,  and  to  account  for  moneys  received 
on  the  sale  of  town  lots. 


CIRCUIT  SCENES.  79 

Althoiig-h  no  answer  had  been  filed  as  yet,  Col.  Strawn 
had  taken  a  great  mass  of  depositions  to  prove  the  value  of 
liis  services  rendered  in  laying  out  the  town,  selling  of  lots, 
and  otherwise  benefiting  the  trust  property.  In  this  con- 
dition of  the  suit  I  was  retained.  I  procured  an  order  from 
the  court  ordering  the  depositions  to  be  opened,  a  careful 
examination  of  which  qualified  me  better  to  draw  an 
answer,  than  I  could  have  done  from  my  client's  statement 
of  the  facts  without  them.  By  agreement  with  Mr.  Peters, 
the  venue  was  changed  to  La  Salle  county,  to  which  the 
records  were  at  once  transmitted,  a  copy  of  which  I  ordered 
for  my  own  use. 

The  other  was  a  case  of  TTauhub  v.  Wauhub.  This  was 
a  cas3  where  a  family  of  that  namo,  consisting  of  a  father 
and  mother  and  several  children,  had  squatted  upon  a  quar- 
ter section  of  land  adjoining  the  town  of  Lacon,  had  l)uilt  a 
house  in  which  they  lived,  and  had  made  other  valuable 
improvements  on  the  land.  Some  time  before  the  land  came 
into  market,  when  it  would  be  possible  to  prove  u]:>  a  pre- 
emption, the  father  died,  leaving  the  wife  and  children  upon 
the  premises.  The  mother  was  an  invalid  and  had  been 
confined  to  her  bed  for  the  previous  twelve  years.  Under 
her  direction,  however,  and  general  supervision,  the  farming 
business  had  been  carried  on  b}^  the  children,  all  living- 
together  upon  the  premises,  deriving  their  support  from  the 
products  of  the  farm,  keeping  no  accounts  among  them- 
selves, and  claiming  no  separate  interest  in  any  part  of  the 
propert}^ 

William  Wauhul)  was  the  oldest  son  and  so  took  the  gen- 
eral management  of  affairs.  When  the  land  came  into 
market  he  proved  up  a  pre-emption  in  his  own  name  and 
took  the  title  to  himself  and  paid  for  it  with  money  derived 
from  the  sale  of  the  products  of  the  farm,  as  the  others 
claimed,  Avhile  he  insisted  that  he  obtained  the  money  from 
other  sources,  and  this  was  the  most  important  question  of 
fact  litigated  in  the  case. 

Soon  after  the  entry  was  made,  William  claimed  to  own 


80        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  land  in  his  own  right,  when  the  next  oklest  brother 
came  up  to  the  court  at  Hennepin  to  seek  legal  advice,  and 
being  satisfied  with  the  manner  in  which  I  had  conducted 
Pierce's  defense  he  retained  me;  having  no  money  with 
which  he  could  pay  me  a  retainer,  but  declaring  himself 
able  to  pay  the  court  expenses,  he  proposed  to  give  me  one- 
half  of  the  land  if  I  should  win  the  case,  but  to  pay  me 
nothing  if  I  should  lose  it.  He  brought  to  me  several 
neighbors  who  confirmed  his  statement  of  the  facts,  as 
above  stated,  from  which  I  was  satisfied  that  a  resulting  trust 
could  be  established.  I  took  full  notes  of  the  facts  from 
which  I  could  draw  the  bill,  commenced  the  suit,  so  as  to 
establish  a  lis  jjcndens^  making  all  the  other  members  of  the 
family  complainants  and  William  Wauhub  defendant.  I 
obtained  leave  to  file  the  answer  in  one  case,  and  the  bill  in 
the  other  at  the  next  term  of  the  court. 

As  before  stated,  I  had  never  before  paid  much  atten- 
tion to  chancery  law,  and  I  now  determined  to  make  it  a 
special  study.  Not  only  that  which  related  to  resulting 
trusts,  but  to  all  other  branches  of  that  depiirtment  of  my 
profession,  including  the  practice,  pleadings  and  general 
principles  upon  which  courts  of  chancery  administer  relief, 
and  I  applied  m^^solf  to  that  study  with  untiring  industry. 
Kent  and  Story,  Hoffman  and  Daniels,  and  many  other  text 
books  were  read  and  re-read  from  beginning  to  end,  and 
compared  one  with  another,  noting  particularly  wherever 
they  disagreed,  in  which  cases  I  examined  the  references, 
that  I  might  form  my  own  conclusions  as  to  which  was 
right,  both  on  authority  and  on  reason  or  principle. 

Of  course,  during  these  researches,  everything  relating  to 
resulting  trusts  was  specially  noted  and  treasured  up  in  the 
memory;  not  only  this,  I  read  case  by  case  all  of  Johnson's 
Chancery  Iweports,  and  all  of  the  chancery  cases  found  in  the 
Kentucky  Reports,  as  well  as  in  the  reports  of  other  States 
to  which  I  then  had  access. 

To  this  task  I  devoted  all  my  leisure  time  for  two  years 
at  least,  and  l)ecame  so  familiar  with  the  subject  that  I  rarely 


CIRCUIT  SCENES.  81 

heard  a  question  raised  in  court,  either  of  pleading,  practic3 
or  principle,  that  it  was  not  almost  as  familiar  to  me  as  my 
alphabet,  and  I  was  astonished  to  see  other  law3^ers  and  the 
courts  hesitate  upon  questions,  where,  it  seemed  to  me,  there 
should  be  no  doubt  at  all. 

xsow,  it  was  the  accident  of  my  having  been  retained  in 
these  two  cases  that  prompted  me  to  this  thorough  course 
of  study  of  chancery  laAV,  which  laid  the  foundation  for  any 
merit  I  may  have  acquired  as  a  chancery  lawyer,  and  when 
I  went  on  the  Supreme  Bench,  at  thirty  years  of  age,  I 
found  I  was  vastly  more  familiar  with  chancery  law  than 
any  of  the  other  judges,  and  hence  it  was,  that  nearly  all  of 
the  chancer}^  records  were  assigned  to  me  for  a  num.ber  of 
years  in  that  court,  as  will  be  seen  by  any  one  who  will 
examine  the  Reports,  commencing  with  the  third  of  Scam- 
raon  and  following  up  to  the  twelfth  or  fifteenth  of  Illinois. 

I  had  been  upon  the  bench  about  a  month,  and  Chief  Jus- 
tice Wilson  had  distributed  the  records  to  other  members  of 
the  court,  till  I  thought  he  considered  me  so  much  of  a  boy 
that  he  deemed  it  not  wise  to  give  me  any  record  on  which 
I  should  write  an  opinion.  Finally,  the  case  of  Frisby  v. 
Balance  having  been  argued,  was  taken  up  in  the  conference 
room.  The  Chief  Justice  called  for  opinions  from  each  one, 
but  no  one  was  prepared  to  express  an  opinion  without  fur- 
ther consideration,  and  I  did  the  same,  although  I  had  pretty 
distinct  views  about  the  case.  The  Chief  Justice  then  offered 
the  record  for  more  careful  examination  to  each  member  of 
the  court  in  succession,  but  each  made  some  excuse  for  not 
taking  it,  till  he  came  to  me,  when  he  laid  it  on  m}^  desk 
and  said :  "  Here,  Caton,  this  is  a  good  case  for  you  to 
break  in  on.''  The  record  was  a  large  one,  and  the  rules 
then  required  neither  abstract  nor  brief,  but  only  the  record 
as  it  came  from  the  Circuit  Court  was  filed.  I  took  the 
record  without  demurrer  or  remark.  When  I  got  to  ray 
room  I  pitched  into  it  as  a  hungry  man  would  into  a  Christ- 
mas dinner.  I  first  read  it  all  through  carefully,  and  then 
made  a  full  abstract  of  it. 
6 


82  EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

I  then  fully  digested  it,  and  carefully  set  down  the  several 
points  which  it  pres3nted,  both  of  law  and  fact.  I  then  re- 
examined the  facts  and  set  down  my  conclusions  upon  each 
one.  I  then  took  the  points  of  \a.w  which  arose  in  the  case, 
upon  which  I  thought  I  knew  what  the  law  was,  hut  to  be 
sure,  I  went  to  the  library,  and  made  up  a  brief.  I  then 
stated  my  conclusions,  with  the  authorities  in  support  of 
them.  I  then  wrote  out  the  opinion  as  it  now  appears  in 
the  report,  but  before  I  presented  it  in  conference,  I  asked 
Governor  Ford  to  my  room  and  read  it  to  him,  and  asked  his 
criticism  upoii  it.  Although  he  had  decided  it  in  the  court 
below  and  my  opinion  reversed  his  decision,  he  approved 
the  opinion  and  highh^  complimented  it.  The  only  ]5oint' 
upon  which  I  reversed  the  decree  below,  was  that  he  had 
granted  affinnative  relief  to  the  defendant  without  a  cross- 
bill, the  error  of  which  he  readily  appreciated.  All  of  this 
took  me  at  least  a  week. 

When  I  read  the  opinion  in  the  conference  room,  all 
readily  agreed  to  it  except  u})on  the  very  point  on  which  I 
reversed  it,  on  which  point  all  at  first  disagreed  with  me, 
really  because  all  had  been  in  the  habit  of  granting  such 
relief  without  a  cross-bill,  on  their  circuits.  Judge  Breese 
was  particularly  strenuous,  and  cited  a  clause  in  the  statute 
which  authorized  the  defendant  to  put  interrogatories  for 
the  complainant  to  answer,  at  the  close  of  his  answer  to  the 
bill.  I  fought  it  out  right  on  that  line,  brought  in  the  books, 
and  showed  the  reasons  which  governed  the  use  of  every 
part  of  chancery  pleadmgs,  and  finally  obtained  the  approval 
of  all  the  members  of  the  court,  and  I  have  no  doubt  that 
this  rule  has  ever  since  prevailed  in  this  State,  and  probably 
there  are  very  few  now  living  that  have  any  suspicion  that 
any  other  rule  ever  prevailed  here,  even  on  the  circuit. 

After  that  I  had  never  cause  to  complain  that  a  fair  pro- 
portion of  the  records  were  not  given  me,  for,  with  rare 
exceptions,  I  received  all  of  the  chancery  records,  and  as  all 
the  evidence  was  then  required  to  be  presented  in  deposi- 


CIRCUIT  SCENES.  83 

tions,  tliey  usually  involved  the  most  labor,  and  I  very  rarely 
met  with  opposition  to  my  conclusions. 

This  state  of  things  impressed  upon  me  the  idea  of  a  great 
responsibility.  The  jurisprudence  of  the  State  was  then  in 
its  infancy.  We  were  then  laving  down  rules  which  were 
to  be  followed  by  those  who  should  come  after  us,  and  it 
w^as  of  the  greatest  importance,  not  only  to  ourselves,  per- 
sonally, but  to  the  profession  generally,  that  these  rules 
should  be  such  as  to  bear  the  test  of  time  and  of  the  closest 
scrutiny,  and  I  intended  to  spare  no  labor  or  pains  to  accom- 
])lish  this  result. 

1  have  thought  it  might  be  profitable  to  some  young 
members  of  the  bar  to  learn  how  it  was  that  I  became  a 
pretty  good  chancery  lawyer  while  3'et  a  very  3^oung  man. 
What  I  learned  so  earl}^  and  so  well,  it  seems  to  me,  I  re- 
member pretty  well  yet,  although  I  have  learned  a  great 
deal  more  since. 

Having  thus  explained  how  it  was  that  these  two  cases 
indirectl}^  redounded  so  much  to  my  advantage,  it  may  bo 
proper  that  I  briefly  follow  each  one  up  to  the  end. 

The  case  of  Babb  v.  Strawn  I  aro^ued  before  Judo^e  Pier- 
son,  in  Ottawa,  at  the  fall  term,  1S37.  The  only  real  ques- 
tion considered  was,  as  to  the  amount  of  compensation  my 
client  was  entitled  to.  Colonel  Strawn  was  not  satisfied 
with  the  amount  given  him  by  the  decree,  and  so,  by  his 
direction,  I  appealed  it  to  the  Supreme  Court,  and  argued 
it  in  that  court  at  Yandalia,  at  the  Decembar  term  in  ISoS. 
That  was  the  first  case  I  ever  argued  in  that  court.  That 
court  then  consisted  of  only  four  judges — Wilson,  Smith, 
Lockwood  and  Brown.  They  affirmed  the  decision  by  an 
equal  division  of  the  court,  and  I  was  so  ungenerous  at  the 
time  as  to  believe  that  they  thought  that  was  the  easiest 
way  to  dispose  of  a  very  large  record. 

In  the  fall  of  1S38, 1  had  the  misfortune  to  have  two  farms 
entirely  burned  over  by  prairie  fires  with  everything  upon 
them.  On  one  was  grain  enough  in  the  stack  to  have  paid 
all  my  debts,  and  more.      On  the  other  was  hay  enough 


84  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

to  have  wintered  a  hundred  head  of  cattle.  In  October 
I  went  doAvn  to  Sangamon  county  where  I  purchased  about 
seventy-five  head  of  cattle,  and  Avas  driving  them  up  to  the 
latter  farm,  when  early  one  morning,  about  fifteen  miles 
below  Ottawa,  I  met  a  man  who  inquired  my  name  and  then 
informed  me  that  my  Plainfield  farm  had  been  burned  over, 
even  to  the  ox  yokes  and  other  farming  utensils,  and  then 
after  giving  me  a  few  minutes  time  to  digest  that,  ho  told 
me  that  my  Du  Page  farm  had  been  burned  over  and  all  the 
grain  upon  it  consuined.  I  iramediateh"  employed  a  man  to 
herd  my  cattle  on  the  prairie,  where  they  were,  and  pushed 
on  for  Chicago,  where  my  family  was,  where  I  arrived  the 
next  forenoon.  After  remainino-  one  dav  to  arranoe  affairs 
here,  I  mounted  my  horse  to  look  after  n\y  stock,  which  I 
found  where  I  had  le.'t  them,  all  right.  I  then  pushed  on 
about  twenty  miles  further  to  Col.  Strawn's,  to  make 
arrangements  with  him  to  winter  my  cattle,  knowing  that 
on  his  large  farm  he  had  abundant  fodder  in  his  corn  fields 
Avith  which  to  do  so. 

During  my  solitar}''  ride  across  the  prairies  I  pictured  to 
myself  the  pleasure  he  would  experience  in  offering  to  winter 
my  cattle  at  a  very  low  figure,  and  the  happiness  it  would 
give  me  to  assure  him  that  I  should  charge  no  other  fee  in 
his  suit  Avith  Babb,  excepting  my  simple  expenses  to  Van- 
dalia  to  argue  his  case  at  the  ensuing  term.  I  was  much 
disappointed  when  I  stated  my  case  to  him,  to  observe  that 
he  was  determined  to  drive  as  hard  a  bargain  with  me  as 
possible.  Winter  Avas  fast  approaching,  and  the  arrange- 
ment for  the  care  of  my  stock  must  be  made  immediately, 
and  he  alone  had  the  means  at  hand  for  caring  for  them. 
As  I  was  in  his  power  I  made  the  best  terms  I  could,  but 
was  careful  to  say  notliing  about  my  fee  in  his  case,  consol- 
ing myself  with  the  reflection  that  I  was  now  absolved  from 
any  obligation  to  treat  him  A'ery  leniently,  Avhen  the  ques- 
tion of  fees  should  come  to  be  considered. 

Some  time  after  the  case  had  been  decided  I  sent  him  a 
bill  for  one  thousand  dollars,  for  my  services  in  that  case. 


CIRCUIT  SCENES.  85 

He  paid  no  attention  to  it  for  some  months,  when  finally  lie 
came  up  to  see  me  about  it,  and  protested  that  my  charge 
was  exorbitant,  and  that  he  could  prove  that  when  at  his 
house  I  had  agreed  to  attend  to  the  case  for  fifty  dollars. 
I  then  told  him  that  I  had  no  doubt  that  he  could  prove 
that  or  anything  else  he  wanted  to  prove;  that  I  knew  him 
too  well  to  doubt  that,  but  that  I  would  catch  him  at  it  as 
sure  as  he  lived. 

I  then  commenced  suit  against  him  at  Lacon,  and  to 
prove  the  value  of  my  services  I  took  the  deposition  of  Mr. 
Peters,  when  we  were  attending  court  in  Kane  county. 
Petei-s  testified  that  he  had  been  counsel  on  the  other  side 
in  the  case,  and  that  the  case  had  been  very  ably  tried  on 
both  sides,  and  that  he  thought  a  thousand  dollars  a  very 
reasonable  fee  for  the  services  which  I  had  rendered  in  the 
case. 

In  the  meantime  I  had  received  notice  and  a  copy  of  inter- 
rogatories to  take  the  deposition  of  some  man  in  Iowa, 
whom  I  had  no  recollection  of  ever  having  seen.  From  the 
interrogatories  it  was  manifest  that  he  intended  to  prove  by 
this  witness  that  he  had  heard  me  agree  with  Col.  Strawn  to 
take  that  case  through  from  beginning  to  end,  for  fifty 
dollars.  In  my  cross-interrogatories,  I  simph^  asked  him  if 
he  had  had  any  communication  with  Ool.  Strawn  about  his 
deposition  about  to  be  taken,  either  oral  or  in  writing,  and, 
if  the  former,  to  state  what  was  said  as  nearly  as  possible, 
and  if  in  writing,  to  attach  the  original  communication  to  his 
deposition. 

When  I  sent  my  cross-interrogatories  to  the  clerk  I 
requested  him  to  let  no  one  know  what  they  were. 

When  the  next  term  of  the  court  was  opened  at  Lacon, 
Mr.  Purple  and  Mr.  Dickey  volunteered  their  services  to  try 
my  cause  for  me,  and  Mr.  Peters  Avas  engaged  for  the  other 
side. 

The  practice  then  required  a  special  order  of  the  court  to 
open  depositions,  which  was  at  once  obtaiiied.  When  the 
defendant's  deposition  was  opened,  the  first  thing  to  attract 


86        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

our  attention  was  an  original  letter  in  Col.  Strav;n's  hand" 
writing,  from  the  defendant  to  the  deponent,  in  which  he 
offered  him  live  dollars  if  he  Avould  swear  to  the  statements 
following.  Then  followed  about  a  page  of  matter  written 
in  the  first  person,  to  which  the  witness  was  to  swear  for  the 
five  dollars,  stating  that  he  had  heard  a  contract  made 
between  Col.  Strawn  and  myself,  by  which  I  agreed  to  con- 
duct his  case  through  from  beginning  to  end,  and  to  pay 
my  own  expenses,  for  fifty  dollars,  stating  many  collateral 
circumstances  to  increase  the  probability  of  his  story.  Then, 
turning  to  the  deposition,  we  found  that  he  had  sworn  to  the 
exact  words  of  the  letter  without  addition  or  diminution. 

Upon  the  trial,  Mr.  Peters'  deposition  was  read  for  my 
side  by  Mr.  Purple,  who  emphasized,  in  a  very  pungent 
manner,  the  statement  that  the  case  "  was  ver}^  ably  tried  on 
both  sides."  For  the  defense,  the  foreign  deposition  was 
read,  and  a  witness  was  called  to  the  stand,  who  swore  that 
he  was  present  when  tlie  bargain  was  made  as  stated  in  that 
deposition,  following  the  same  phraseology,  scarcely  varying 
it  by  a  single  word.  On  cross-examination  he  positively 
denied  ever  having  conversed  in  any  way  with  Col.  Strawn 
about  what  he  was  to  swear  to.  The  cross-examination  was 
what  might  have  been  expected  under  the  circumstances, 
but  the  most  valuable  result  obtained  was  that  he  obsti- 
nately refused  to  vary  his  statements  from  the  formula  set 
forth  in  the  letter  of  instructions  to  the  foreign  witness.  I 
should  have  stated  that  the  deposition  was  not  read  in  evi- 
dence till  after  the  oral  testimony  had  been  given,  and 
probably  Peters  would  not  have  read  it  at  all  had  he  not 
felt  sure  that  we  would  have  done  so  by  the  leave  of  the 
court. 

The  summing  up  on  my  side  was  what  might  have  been 
expected  from  two  such  aljle  lawyers  as  Dickey  and  Purple, 
the  latter  being  especially  caustic  in  some  portions  of  his 
address.  Peters,  on  his  side,  of  course,  could  not  deny  that 
the  services  were  worth  the  thousand  dollars,  as  stated  in 
his  deposition,  but  based  his  defense  solely  upon  the  special 


CIRCUIT  SCENES.  87 

contract  claimed  to  have  been  proven.  The  trial  had  occu- 
pied the  wliole  day,  and  Judge  Ford  adjourned  the  court 
until  evening  to  receive  the  verdict.  "When  at  the  evening 
session  the  jury  was  brought  in,  Col.  Strawn  was  seated 
close  to  the  jury  box  near  the  upper  end.  When  the  fore- 
man announced  a  verdict  of  seven  hundred  and  fifty  dollars 
for  the  plaintiff,  the  colonel  jumped  to  his  feet  and  strode 
out  in  front  of  the  jury,  remarking  as  he  went,  "  Thank 
you,  gentlemen,  a  very  small  fee,  indeed;  only  about  a  half 
bushel  of  dollars."  After  harvest  I  was  told  that  he  hauled 
in  his  wheat  with  a  four-horse  team,  which  he  drove  himself, 
and  whenever  he  met  a  neighbor,  and  especially  if  he  hai> 
pened  to  be  one  of  the  jury,  in  a  sarcastic  tone  he  would 
exclaim,  ''  That  load  of  wheat  you  see  is  part  of  lawyer 
Caton's  fee." 

Had  he  kindly  assisted  me  and  shown  some  sympath}'^  in 
my  distress,  no  charge  would  have  ever  been  made  him  for 
those  services. 

There  is  a  moral  in  this  story,  but  whether  he  ever  prof- 
ited by  it  or  appreciated  it  I  do  not  know. 

The  Wauhub  case  may  be  soon  disposed  of.  I  went  to 
Lacon  and  took  the  deposition  of  the  neighbors,  who  knew 
the  facts  of  the  case.  It  was  then  that  I  first  met  the  old 
lady,  who  was  lying  in  the  bed  she  had  occupied  for  so  many 
years.  She  was  an  inveterate  smoker,  and  during  my  visit 
she  was  constantly  employed  in  that  soothing  occupation. 
She  died  some  years  later  in  that  same  bed,  and,  as  I  was 
informed,  with  the  pipe  in  her  mouth,  which  was  still  lighted, 
so  that  it  might  bs  truly  said  she  smoked  with  her  last 
breath. 

When  the  case  was  ready  for  hearing  I  applied  to  the 
court  for  an  order  for  a  feigned  issue  to  try  the  prin- 
cipal fact  involved  in  the  case,  which  was  granted.  As 
was  my  duty,  I  prepared  the  pleadings  according  to  the  old 
English  i^ractice,  which  was  a  declaration  in  the  case  of  John 
Doe  V.  Richard  Roe,  that  a  wager  had  been  made  between 
the  parties,  wherein  John  Doe  had  affirmed  that  the  land, 


88        EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

describing  it,  had  been  purchased  by  AYm.  Wauhub,  of  the 
United  States,  with  money  belonging  to  the  said  comphiin- 
ants  and  defendant,  naming  them,  in  equal  proportions,  and 
the  said  defendant,  Richard  Eoe,  averred  that  the  said  land 
was  purchased  with  money  belonging  to  the  said  Wm.  Wau- 
hub, exclusively,  and  in  his  own  right,  Avhereupon  the  said 
parties  had  made  a  wager,  whereby  the  said  plaintiff  had 
agreed  to  pa}'^  the  said  defendant  a  certain  sum  of  money, 
naming  some  sum,  in  case  the  said  purchase  money  did  not 
belong  to  the  comjilainants  and  defendant,  naming  them,  in 
equal  proportions,  but  that  the  said  purchase  money  belonged 
exclusively  and  in  his  ovv^n  right  to  the  said  William  Wau- 
hub, and  the  said  defendant,  Eichard  Eoe,  then  and  there 
promised  and  agreed  to  pay  the  said  plaintiff  a  like  sum  of 
money,  if  the  said  purchase  money  did  not  belong  to  the  said 
AVm.  Wauhub  exclusively,  and  in  his  own  right,  but  did 
belong  to  the  parties  in  the  chancery  suit,  naming  them,  in 
equal  proportions.  The  declaration  then  averred  that  the 
facts  were  as  the  plaintiff  had  declared  them  to  be,  and  were 
not  as  the  defendant  had  declared  them  to  be,  whereby  the 
said  defendant  had  become  indebted  to  the  said  plaintiff  in  the 
said  sum  of  money,  naming  it,  which  he  had  often  been 
requested  to  pay,  but  that  he  had  neglected  and  refused  to 
do  so,  whereby  an  action  had  accrued,  etc. 

I  also  prepared  a  plea,  admitting  the  fact  of  the  wager  as 
stated,  but  denying  the  facts  as  stated  in  the  declaration, 
which  would  entitle  the  plaintiff  to  the  money  claimed  in 
the  declaration  and  added  the  similiter.  The  next  morning 
I  presented  these  pleadings  to  Mr.  Peters,  and  asked  him  to 
sign  the  plea  as  attorney  for  the  defendant,  which  he  at 
first  declined  to  do,  stating  that  this  \vas  a  proceeding  which 
he  did  not  quite  understand,  and  that  he  did  not  propose  to 
assume  any  such  responsibility.  Judge  Ford,  however,  ad- 
vised him  to  sign  the  plea,  as  it  was  a  mere  matter  of  form, 
to  get  the  issue  presented  by  the  pleadings  before  the  jury, 
and  likened  it  to  the  fictitious  pleadings  in  an  action  of  eject- 
ment, whore  the  lease,  entry  and  ouster  had  to  be  averred 


CIRCUIT  SCENES.  89 

p.nd  admitted  in  order  to  present  the  real  issue  in  the  ease, 
although  such  facts  had  never  really  existed.  Mr.  Peters 
then  signed  the  plea,  and  the  jury  was  called,  who  found  a 
verdict  in  favor  of  the  plaintiff,  whereupon  the  court  entered 
a  decree  in  my  favor  for  the  execution  of  the  resulting 
trust. 

As  William  Wauhub  was  shown  to  be  b83^ond  the  juris- 
diction of  the  court,  I  had  Jesse  C.  Smith  appointed  a  com- 
missioner to  execute  the  deed  in  his  name,  and,  as  I  had  ail 
the  papers  prepared  beforehand,  this  was  done  directly, 
promptly  acknowledged  and  filed  with  the  recorder,  which 
vras  reported  to  the  court,  and  the  report  approved. 

Hitherto  the  practice  had  been,  in  such  cases,  to  treat  the 
decree  as  an  absolute  conveyance.  This  was  more  com- 
monly the  case  in  suits  for  partitions  of  lands,  where  the 
confirmation  of  the  report  of  the  commissioners  was  deemed 
sufficient  conveyance  to  the  several  parties,  of  the  parts 
assigned  them.  In  this  way,  Mrs.  Judge  Breese  held  title 
to  her  share  of  the  large  estate  of  her  father,  of  which  she 
had  conveyed  many  tracts  with  warranty  deeds,  about  which 
no  question  had  ever  been  raised,  until  a  few  years  ago, 
when  Judge  Snyder,  of  the  Belleville  Circuit,  decided  that 
the  fee  had  not  passed  to  her  by  the  confirmation  of  the 
report  of  the  commissioners,  thus  leaving  her  liable  upon  all 
of  the  warranties  she  had  made.  This  decision  very  much 
disturbed  the  judge,  and  he  wrote  me  for  my  opinion  as  to 
its  correctness.  I  answered  him  that  in  my  opinion  it  was 
the  law,  but  possibly  a  remedy  might  be  found,  yet,  and  at 
his  request  I  met  him  in  Mount  Yernon,  where  the  Supreme 
Court  was  in  session.  The  partition  had  taken  place  about 
forty  years  before;  and  he  could  hardly  believe  that  such  dis- 
tinguished lawyers  as  David  J.  Baker  and  Colonel  Snyder, 
who  were  two  of  the  commissioners  who  made  the  partition, 
could  have  omitted  anything  to  make  their  work  complete. 

I  advised  him  that  the  matter  was  still  in  fieri,  and  now 
pending  before  the  court,  and  prepared  a  petition  to  be  pre- 
sented to  that  court  to  have  the  suit  redocketed,  and  a  com- 


90  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

missioner  appointed  to  execute  the  necessary  conversances. 
This,  he  informed  me,  was  afterward  done,  and  thus  was  he 
relieved  of  a  great  embarrassment. 

I  have  thought  that  tliis  sketch  of  our  judicial  history 
might  be  worth  the  space  it  occupies. 

VII. 

EE-FOEMATIOK  OF  THE  SUPEEME  COUET— ELECTION  OF  NEW  JUDGE 
ELECTED  AS  JUDGE  OF  SUPEEME  COUET. 

After  Gov.  Carlin  was  inaugurated  he  made  an  order 
removing  the  secretary  of  state,  and  appointing  another  in 
his  stead.  His  right  to  do  this  Avas  denied  by  the  incum- 
bent, and  he  refused  to  deliver  up  the  office.  A  proper  case 
was  made,  and  the  question  was  presented  to  the  Supreme 
Court  for  its  decision.  The  court  then  consisted  of  Wilson, 
Lockwood  and  Brown,  whigs,  and  Smith,  a  democrat.  The 
court,  by  the  three  lirst  named  justices,  decided  that  the 
governor  had  no  power  to  make  the  change,  to  which  Smith, 
justice,  dissented. 

When  the  Legislature  assembled  in  December,  1839,  it 
was  found  to  contain  a  large  majority  in  each  house  of 
democrats,  when  this  decision  assumed  a  political  aspect. 
As  the  judges  of  that  court  were  elected  for  life  or  during 
good  behavior,  there  was  no  mode  of  re-forming  that  court, 
as  it  was  called,  but  by  increasing  its  members;  so  a  bill  was 
passed  adding  five  more  members  to  the  court,  who  were 
to  be  elected  by  joint  ballot  of  the  General  Assembl}^  To 
fill  these  places  Breese,  Douglas,  Ford,  Scates  and  Treat 
were  elected.  A  bill  was  also  passed  requiring  the  judges 
of  the  Supreme  Court  to  hold  the  Circuit  Courts  in  the  nine 
circuits  into  which  the  State  was  divided,  and  assigning  a 
particular  circuit  to  each. 

This  measure  was  strenuously  opposed  by  the  old  judges, 
who  did  not  relish  the  idea  of  being  again  required  to  do 
circuit  dutv. 


SAMUEL    H.    TREAT, 


CIRCUIT  SCENES.  91 

Ford  was  assigneil  to  the  ninth  circuit,  in  several  counties 
of  which  I  had  kept  up  my  practice  during  my  residence  on 
my  Plainfield  farm. 

Having  recovered  my  health,  in  the  spring  of  ISiS  I  re- 
moved into  Kendall  county,  preparatory  to  returning  to 
Chicago  to  resume  my  practice  here,  after  the  close  of  the 
spring  courts  in  the  ninth  circuit.  "While  attending  the  court 
at  Geneva,  which  was  the  last  court  of  the  spring  circuit, 
Judo:e  Ford  received  a  communication  from  the  Democratic 
State  Committee  that  they  had  nominated  him  a  candidate 
for  governor  at  the  ensuing  August  election  in  place  of  Col. 
Snyder,  who  had  been  previously  nominated  by  the  State 
Convention  and  had  lately  died.  Before  we  separated  Judge 
■  Ford  privately  told  me  not  to  return  to  Chicago,  as  I  had 
contemplated,  but  to  remain  in  Kendall  county;  that  he 
should  be  elected  governor,  and  that  the  governor  would 
appoint  me  his  successor,  and  that  he  thought  me  the  best 
qualified  of  any  member  of  the  bar  in  the  circuit,  I  conse- 
quently remained  there  till  after  the  August  election,  at 
which  Governor  Ford  Avas  elected  by  a  large  majority.  That 
very  night  I  started  for  Quincy,  where  Governor  Carlin  re- 
sided, when  I  presented  myself  before  the  governor  as  a 
candidate  for  the  vacant  judgeship.  He  received  me  very 
cordially,  but  as  he  had  not  yet  received  the  resignation  of 
Judge  Ford,  there  was  no  vacancy  to  be  filled;  he  said 
he  should  be  happy  to  see  me  again,  after  he  had  received 
Ford's  resignation.  He  gave  me  no  other  assurance  than 
this  that  my  application  should  be  favorably  considered,  but 
I  accepted  this  invitation  as  a  favorable  omen  and  returned 
to  Lisbon,  where  my  famih^  then  was.  Probably  a  week 
later  I  again  presented  myself  before  Governor  Carlin,  who 
again  received  me  very  cordially,  and  at  once  informed  me 
that  he  had  concluded  to  appoint  me  to  the  vacancy  created 
l)y  Ford's  resignation,  and  wrote  out  the  appointment,  with 
a  direction  to  the  secretary  of  state  to  issue  my  commission, 
he  having  blanks  in  his  office  signed  by  the  governor,  With 
these  documents  I  returned  through  Springfield  and  received 


92  EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

my  commission  from  Mr.  Trumbull,  who  was  then  secretary 
of  state,  when  I  went  across  the  hall  and  was  sworn  into 
office  by  Judge  Treat.  This  commission  could  only  extend 
to  the  close  of  the  session  of  the  next  General  Assembly, 
which  would  by  joint  ballot  elect  a  successor  to  Judge  Ford. 
When  the  election  occurred  John  M.  Kobinson,  late  the 
United  States  Senator  from  this  State,  was  elected,  and  at 
the  end  of  the  term  I  returned  home  supposing  that  my 
judicial  career  was  at  an  end. 

Although  Eobinson  had  been  an  active  politician,  he  was  a 
fairly  good  la wj^er,  and  possessed  a  good  deal  of  what  he  him- 
self called  horse  sense.  Pie  held  his  first  court  at  Lacon,  then 
went  up  to  Hennepin  where  he  held  the  circuit,  and  thence  to 
Ottawa,  where  he  opened  the  court  a  week  later.  He  was 
a  man  considerably  advanced  in  years,  with  a  constitution 
somewhat  impaired,  and  on  the  second  day  of  the  term 
complained  of  illness,  and  a  few  days  later  took  to  his  bed, 
where  he  died  two  or  three  weeks  later. 

So  soon  as  Governor  Ford  was  informed  of  his  death,  he 
wrote  out  a  commission  entire  with  his  own  hand,  which  he 
sent  me.  This  was  my  second  commission  as  judge  of  the 
Supreme  Court  of  Illinois.  I  now  had  two  years  to  serve 
upon: the  bench  before  the  Legislature  would  be  called  upon 
to  elect  a  successor  to  Judge  Robinson.  Before  that  oc- 
curred I  had  an  opportunity  of  getting  well  acquainted 
throughout  the  circuit,  and,  as  my  friends  thought,  demon- 
^strated  my  fitness  for  the  high  office  which  I  then  filled, 
notwithstanding  my  lack  of  3"ears,  and  was  nominated 
unanimously  by  the  party  to  which  I  belonged,  which  was 
largely  in  the  ascendency  in  the  General  Assembly. 

ThC'  opposite  party  nominated  David  Davis,  who  subse- 
quently became  eminent  as  a  jurist,  when  a  member  of  the 
Supreme  Court  of  the  United  States.  His  nomination, 
however,  was  well  understood  to  be  merely  complimentary, 
by  reason  of  the  numerical  strength  of  my  party  friends. 
When  I  was  elected  I  received  my  third  commission  as  a 
justice  of  the  Supreme  Court.     This  was  for  life  or  during 


DAVID    DAVIS, 


CIRCUIT  SCENES.  93 

good  behavior,  according  to  the  provisions  of  the  constitu- 
tion then  in  force. 

AA^'hen  the  Constitution  of  184:8  was  adopted,  it  abolished 
the  Supreme  Court  of  nine  judges,  and  created  a  new 
Supreme  Court  of  three  judges,  with  only  appellate  jurisdic- 
tion, except  in  a  few  specified  cases,  and  provided  they  should 
be  respsctively  elected  by  the  people  in  each  of  the  three 
grand  divisions  into  which  the  State  was  divided.  For  this 
court.  Treat,  Trumbull  and  myself  were  elected,  and  then  I 
received  my  fourth  commission  as  judge  of  the  Supreme 
Court.  We  organized  the  new  court  at  Mount  Yernon,  in 
December,  18-i8.  The  constitution  provided  that  we  should 
cast  lots  at  that  term,  as  to  which  should  hold  the  office 
for  nine  years,  which  for  six  years,  and  which  for  three 
years.  This  we  did  very  quietl}^  and  by  ourselves  in  our 
own  room.  Treat  drew  the  longest  straAv,  and  so  became 
chief  justice  of  the  court;  I  drew  the  second  and  Trumbull 
the  third.  Before  Trumbull's  term  expired  he  was  elected 
a  senator  to  Congress,  and  Scates  was  elected  to  fill  his 
vacancy.  Before  my  term  of  six  years  expired  Treat  was 
appointed  United  States  District  Judge  for  the  Southern 
District  of  Illinois,  Avhen  I  became  chief  justice  for  nearly 
six  months,  or  from  Januar37^  to  June,  inclusive. 

During  the  last  six  months,  when  I  held  office  under  that 
fourth  commission^  it  was  by  a  rather  doubtful  tenure.  The 
constitution  provided  that  our  terms  should  commence  on 
the  first  Monday  of  December,  1848,  and  should  continue 
for  three,  six  and  nine  years  respectively,  and  provided  that 
the  elections  for  our  successors  should  respectively  be  held 
in  the  June  following,  and  made  no  provision  for  the  inter- 
vening six  months,  j'o  meet  this  emergency,  the  General 
Assembly  passed  a  law  providing  that  we  should  continue 
in  office  till  our  successors  were  elected  and  qualified. 
Whatever  might  be  said  of  the  constitutionality  of  this  act, 
it  was  thought  to  give  color  of  office  sufficient  to  make  us 
officers  dejacto,  so  as  to  make  our  acts  as  legal  and  binding 
as  acts  of  officers  de  jure  would  be. 


91  EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

At  the  expiration  of  my  term  thus  extended,  I  was  elected 
to  succeed  myself  for  the  nine  years  term,  in  June,  1S55. 
At  the  same  time,  Judge  Skinner  was  elected  to  fill  the 
vacancy  caused  by  the  resignation  of  Judge  Treat,  who  was 
appointed  United  States  District  Judge,  when  Scates,  who 
had  beeu  elected  in  the  Third  Grand  Division  to  succeed 
Judge  Trumbull,  became  chief  justice  by  virtue  of  his  hold- 
ing the  oldest  commission. 

As  before  stated,  at  the  June  election  in  1855,  both 
Skinner  and  myself  Avere  elected,  and  on  this  I  received  my 
fifth  commission  as  judge  of  the  Supreme  Court  of  Illinois. 

As  the  constitution  provided  that  the  judge  holding  the 
oldest  commission  should  be  chief  justice,  the  governor,  per- 
ceiving that  embarrassment  might  arise  from  the  omission 
of  the  constitution  to  determine  who  should  become  chief 
justice  when  two  of  the  judges  should  hold  commissions 
bearing  the  same  date,  iskied  my  commission  one  day 
earlier  than  that  to  Skinner.  "When  we  met  at  Mount 
Vernon  for  the  November  term,  1857,  of  the  court.  Skinner 
claimed  that  the  governor  had  no  right  thus  to  determine 
who  should  be  chief  justice,  and  that  a  fair  way  to  settle^ 
the  question  was  by  casting  lots  for  it.  Of  course  the 
decision  of  this  question  fell  upon  Judge  Breese,  who  had 
been  elected  to  succeed  Judge  Scates  in  June,  1857.  Judge 
Breese  decided  that  as  I  actually  held  the  oldest  commission, 
the  constitution  declared  that  I  should  be  th.e  chief  justice, 
and  then  I  took  my  seat  as  presiding  officer  of  tliat  court 
for  the  second  time,  and  held  that  office  until  I  resigned,  in 
1864. 

This  short  historical  sketch  shows  how  two  embarrassing 
questions  were  disposed  of  during  the  time  embraced  in  it.' 
I  thought  it  proper  to  recall  them  here.  The  first  was,  how 
the  hiatus  was  bridged  over  between  the  expiration  of  iny 
six  years  commission,  which  occurred  in  December,  1854, 
and  the  election  of  m}'  successor  in  June,  1855;  and  the  other 
was  as  to  how  I  became  chief  justice,  after  the  resignation 
of  Chief  Justice  Scates,  when  both  Skinner  and  myself  were 


LYMAN    TRUMBULL. 


CIRCUIT  SCENES.  95 

elected  at  the  same  time  in  1S57.  It  also  shows  how  I  be- 
came Circuit  Judge  for  the  Ninth  Circuit,  from  August,  1842, 
to  December,  1848,  with  the  exception  of  about  two  months. 
Durino-  that  time  some  interesting  circuit  scenes  occurred 
which  I  may  give  hereafter. 

VIII. 

LYNCH    LAW PUNISHMENT    OF    THE    OFFENDERS. 

Two  years  before  I  came  to  the  Supreme  Bench,  I  had 
been  called  to  Ogle  count}",  which  was  in  the  ninth  circuit, 
to  prosecute  an  action  on  a  note  of  hand,  which  had  been 
given  to  a  particular  friend  of  mine,  for  an  improvement 
and  claim  on  the  public  lands.  As  the  lands  in  that  part  of 
the  State  had  not  yet  been  brought  into  market,  claim  titles 
were  the  only  ones  known  in  that  region,  and  the  courts  and 
lawyers  had,  by  a  sort  of  universal  consent,  adopted  and  ad- 
hered to  rules  adapted  to  that  class  of  titles,  and  we  acted 
upon  them  with  as  much  assurance  as  if  they  had  been 
adopted  by  the  Legislature,  or  were  to  be  found  in  the  books 
of  the  common  law.  Well,  in  this  case  a  defense  was  set  uj) 
that  the  payee  of  the  note  had  not  a  good  title  to  the  claim 
for  which  it  was  given,  and  as  my  client  had  left  the  county 
after  he  had  sold  his  claim,  the  witnesses  managed  to  throw 
sufficient  doul)t  over  his  right  to  induce  a  jury  of  the  neigh- 
borhood to  find  a  verdict  for  the  defendant;  but  I  made  a 
stubborn  fight  in  an  np-hill  case,  and  was  soon  engaged  in 
several  other  cases  then  pending,  and  in  some  which  were 
to  be  tried  at  the  next  term  of  the  court,  so  I  was  fairlv 
engaged  in  practice  in  that  county,  although  when  I  went 
there  first  I  only  expected  to  try  the  particular  case  which 
called  me  there. 

A  year  later  I  was  retained  in  the  most  imjiortant  case, 
nominally  at  least,  in  which  I  was  ever  engaged.  That  was 
to  defend  one  hundred  and  twelve  men  charged  with  the 
crime  of  murder.     For  some  years  before,  there  was  a  sort 


96  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

of  an  organized  band  of  criminals,  principally  engaged  in 
horse  stealing  and  counterfeiting,  but  who  on  occasions  did 
not  hesitate  to  commit  murder.  They  became  bold  and  defi- 
ant. They  were  well  known  throughout  the  community, 
and  had  many  sympathizers,  who,  in  order  to  turn  suspicion 
from  themselves,  roundly  denounced  them  w^hen  in  certain 
circles;  indeed,  they  were  so  well  organized  and  bold,  and 
had  so  many  s^nnpathizers,  who  did  not  profess  to  be  of 
them,  that  it  was  impossible  to  punish  them  even  upon  the 
clearest  proof  of  guilt.  The  jail  was  broken  open  and 
burned  to  liberate  some  of  the  gang  who  were  confined  in 
it,  and  some  of  their  sympathizers  would  always  manage  to 
get  on  the  jury,  so  that  a  conviction  became  impossible. 

But  the  evil-doers  consisted  of  but  a  small  percentage  of 
the  population  of  the  county,  a  great  majority  of  whom 
were  as  excellent  men  as  could  be  found  in  any  other  com- 
munity. The}^  seeing  that  the  arm  of  the  law  was  too  short 
to  afford  them  protection  for  either  life  or  property,  formed 
themselves  into  a  sort  of  association  or  club,  the  declared 
object  of  which  was  to  rid  the  community  of  the  criminal 
class;  one  Campbell  was  elected  captain  of  this  club,  which 
also  elected  several  subordinate  officers.  This  was  done  on 
Saturday,  and,  as  its  proceedings  w^ere  open  and  public,  they 
were  known  immediately  throughout  the  county.  The  des- 
peradoes saw  at  once  tha,t  they  must  strike  such  a  terror 
throughout  the  community  as  to  disintegrate  the  members 
of  this  club  oy  the  force  of  fear,  or  they  must  go  themselves. 
They  saw  it  was  an  issue  of  blood,  and  did  not  hesitate  to 
accept  it  at  once.  By  arrangement  three  of  the  gang  were 
to  commence  operations  by  assassinating,  in  the  most  public 
manner,  Campbell,  the  leader  of  the  association,  and  accord- 
ingly, on  Sunday,  rode  up  to  his  cabin  in  broad  daylight, 
called  him  to  the  door  and  riddled  him  with  bullets. 

The  news  of  this  terrible  tragedy  was  known  throughout 
the  county  by  Monday  morning,  and  without  call  or  notice, 
the  members  of  the  club  assembled  at  their  appointed  rendez- 
vous, and  details  were  sent  out  to  arrest  and  bring  in  the 


CIRCUIT  SCENES.  97 

murderers.  This  was  finally  accomplished,  and  they  were 
brought  before  the  assembled  club  in  a  grove  a  few  miles 
south  of  the  county  seat.  There  a  court  was  organized,  con- 
sisting of  a  judge  and  jury,  all  of  whom  were  sworn  by  a 
justice  of  the  peace,  to  impartially  try  the  case  and  a  true 
verdict  to  render.  Witnesses  were  sworn  before  this  tribu- 
nal, who  saw  the  murder  committed,  and  who  positively 
identified  the  prisoners  as  the  murderers.  Lawyers  had  been 
appointed  to  prosecute  and  defend  the  prisoners  and  every 
formality  was  observed  which  was  characteristic  of  a  regu- 
larly constituted  court  of  justice  established  by  law.  A 
verdict  of  guilty  was  returned,  and  a  sentence  passed  that 
all  should  be  shot  on  the  spot.  A  company  was  detailed  to 
carry  the  sentence  into  execution,  which  was  done  at  the 
word  of  their  commanding  officer. 

This  prompt  proceeding  struck  such  a  terror  into  the  crim- 
inal class,  that  the  most  notorious  of  them  fled  at  once,  with- 
out standing  on  the  order  of  their  going,  and  their  sympa- 
thizers were  dumb  with  terror. 

As  every  member  of  the  club  who  was  present,  was  in 
the  eye  of  the  law  guilty  of  murder,  I  was  at  once  consulted 
as  to  the  wisest  course  to  pursue.  I  unhesitatingly  advised 
that  an  indictment  should  be  procured  against  all  who  were 
present  at  tlie  execution,  feeling  perfectly  assured  that  they 
could,  be  acquitted  then,  while  a  change  of  condition,  of  pop- 
ulation, and  of  public  sentiment  might,  without  a  judgment 
of  acquittal  standing  upon  the  record,  give  them  trouble  at 
some  future  time.  Accordingly  an  indictment  was  pre- 
sented against  one  hundred  and  twelve  who  were  present 
at  the  trial  and  execution  of  the  culprits.  Of  course,  my 
consultations  had  been  with  only  a  few  of  the  leaders,  but 
now  it  was  necessary  to  have  them  all  together,  and  accord- 
ingly we  marched  out  onto  a  little  isolated  peak  in  the 
prairie,  and  I  had  them  formed  in  a  circle  around  me, 
while  I  called  over  a  list  of  the  defendants,  when  all 
answered  to  their  names  except  four,  who  were  unavoidablv 
absent.  Even  the  sheriff,  in  whose  nominal  custodv  thev 
7 


98       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

were,  was  convenient!}^  absent,  and  no  one  but  the  prisoners 
and  myself  were  within  two  hundred  yards  of  us.  I  was 
assured  that  no  one  of  them  had  boasted  of  the  transaction, 
or  in  any  way  admitted  that  he  was  present  at  the  time, 
and  I  saw  no  difficulty  in  the  way,  except  as  to  the  four 
defendants  that  were  notpresent,  in  whose  favor  a  judgment 
of  acquittal  was  as  necessary  as  to  the  others;  but  this  was 
got  over  by  selecting  four  of  the  party,  each  of  whom  was 
to  answer  for  one  of  the  absentees  when  his  name  should  be 
called  in  court  to  plead  to  the  indictment.  "When  all  of  the 
mauy  details  wei'e  arranged  for  the  conduct  of  the  case,  we 
marched  back  to  the  court  house,  which  was  cleared  of  all 
others,  as  supposed,  and  when  my  numerous  clients  filed  in 
they  filled  the  little  courtroom  quite  up  to  the  table  around 
which  the  lawyers  sat.  While  the  court  was  waiting  for 
our  appearance  it  had  been  occupied  with  some  unimpor- 
tant business,  so  that  all  was  ready  to  proceed  with  the  case 
when  we  arrived.  The  case  was  at  once  called,  and  the 
clerk  proceeded  to  call  the  prisoners,  who  promptly  answered 
to  their  names.  I  confess  I  felt  a  little  anxiety  whenever 
the  name  of  an  absentee  was  called,  but  the  proxies  all 
answered  promptly  and  without  another  word,  until  the  last 
answer  was  made,  when  some  one  near  the  door  hallooed 
out  in  a  rather  tremulous  voice,  "  That  ain't  him." 

This  caused  a  flutter  of  excitement  for  a  moment,  and  the 
judge  directed  that  name  to  be  called  again,  Avhenthe  proxy, 
who  was  standing  away  back  in  the  crowd,  again  responded , 
for  his  principal,  and  no  one  could  tell  who  had  interrupted 
the  proceedings  in  the  manner  stated.  The  clerk  proceeded 
with  the  call  of  his  prisoners,  and  all  were  declared  to  be 
present,  and  I  entered  a  plea  of  not  guilty  for  the  whole 
lot,  when  the  jury  was  called.  Of  course,  with  the  number 
of  challenges  which  we  had,  I  could  select  a  jur}^  to  suit 
myself,  but  I  had  occasion  to  use  very  few  challenges.  The 
entire  panel  was  of  exceptionally  good  men,  and  we  accepted 
the  most  prominent  of  these,  while  the  state's  attorney  made 
very  few  challenges.     He  then  proceeded  with  his  testimony 


CIRCUIT  SCENES.  99 

but  utterly  failed  to  prove  that  any  person  had  been  killed, 
much  less  that  any  of  the  prisoners  had  taken  any  part  in 
killing  anybody.  The  truth  was,  that  no  one  was  present 
at  the  trial  and  execution  but  the  defendants,  and  no  one 
could  be  found  who  had  heard  any  one  of  them  say  a  word 
about  it.  All  the  witnesses  had  heard  rumors,  with  which 
the  whole  atmosphere  was  filled  and  had  been  ever  since 
the  event  happened,  but  of  course,  these  widely  differed 
from  each  other,  and  some  of  them  were  wildly  extrava- 
gant, but  this  was  not  legal  testimony.  I  did  not  object  to 
them,  because  I  wished  to  demonstrate  by  their  contradict- 
ory character  how  unreliable  mere  rumors  are.  I  called  no 
witnesses,  no  argument  was  made  to  the  jury  on  either  side, 
and  I  asked  the  court  to  instruct  the  jury  that  mere  rumors 
were  not  evidence,  which,  of  course,  he  did,  and  explained 
the  law  in  his  own  way  as  to  what  evidence  was  necessary 
to  authorize  a  conviction.  The  jury  were  absent  but  a  short 
time,  when  they  returned  with  a  verdict  of  acquittal,  upon 
which  judgment  was  entered,  and  thus  ended  that  celebrated 
case. 

There  were  in  the  town  at  the  time  quite  a  number  who 
sympathized  with  the  prosecution,  every  one  of  whom  were 
Avell  known,  and  some  were  allowed  to  manifest  their  feel- 
ings, but  this  was  done  more  by  looks  and  shrugs  than  by 
words,  and  very  few  remained  in  the  county  long  after  these 
events  transpired.  Many  of  my  then  clients  have  filled 
honorable  public  positions,  in  which  they  have  acquitted 
themselves  in  the  most  useful  and  honorable  way,  and  all, 
so  far  as  I  have  ever  learned,  have  deserved  and  have 
received  the  respect  of  their  fellow-men. 

IX 

IXCIDEXTS  OF    TEIALS. 

"WTien  I  came  to  the  bench  of  the  Circuit  Court  of  the 
Ninth  Circuit  crime  was  scarcely  more  frequent  in  Ogle 


100      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

county  than  in  the  other  counties,  where  less  stringent 
measures  have  been  necessary  to  check  its  perpetration. 
Indeed,  no  trouble  existed  in  the  enforcement  of  the  law  in 
the  proper  and  legal  way.  Undoubtedly  there  were  many 
still  left  to  sympathize  with  those  who  had  departed,  and 
some  were  still  left  who  were  more  than  sympathizers,  but 
all  were  known  and  watched.  However,  as  time  w^ent  on, 
some  assumed  a  bolder  tone  than  others,  and  occasionally  a 
horse  w^as  spirited  away. 

Mr.  Fridley  had  been  elected  state's  attorney  for  the 
ninth  circuit  at  the  session  of  1842-3.  He  found  affairs 
in  Ogle  county  rather  quiet  and  orderly,  with  jurors  care- 
fully selected  from  among  the  best  citizens,  and  no  unusual 
number  of  criminal  prosecutions. 

At  one  term  he  found  a  man  by  the  name  of  Bridges  in 
the  jail  on  a  charge  of  horse  stealing.  Now,  Bridges  had 
an  unsavory  reputation,  and  had  for  a  long  time  been 
believed  to  be  more  than  a  sympathizer  with  the  criminal 
class.  If  he  had  fled  from  the  county  after  the  execution  of 
the  murderers  of  Campbell,  he  had  returned  with  his  family, 
and  was  ostensibly  engaged  in  farming.  Fridley  had,  with 
his  usual  industry  and  perseverance,  gathered  up  all  the  evi- 
dence attainable,  and  made  a  case  before  the  grand  jury 
which  would  insure  a  conviction  on  the  trial,  and  this  be- 
came so  well  understood  that  his  counsel,  Mr.  Peters, 
advised  him  to  plead  guilty,  preferring  to  trust  the  court  to 
determine  the  measure  of  the  punishment,  rather  than  to 
leave  that  to  an  Ogle  county  jury. 

I  sentenced  him  to  seven  years  in  the  penitentiary,  which 
was  more  severe  than  Mr.  Peters  had  expected,  and  which 
many  of  his  outside  friends  characterized  as  outrageous,  and 
even  threats  were  floating  about  against  us;  but  we  paid 
little  attention  to  these,  feeling  confident  that  the  lesson  of 
only  two  or  three  years  before  was  still  fresh  in  the  memo- 
ries of  the  evil-doers,  and  that  they  would  not  again  commit 
an  outrage  which  might  raise  a  greater  storm  of  indigna- 


BURTON    C.    COOK. 


CIRCUIT  SCENES.  101 

tion  than  even  the  first  had  done,  and  which  miHit  more 

o 

materially  decrease  tlie  population  of  the  county. 

At  the  session  of  1844-5,  Mr.  B.  C.  Cook  had  been  elected 
to  succeed  Mr.  Fridley  as  state's  attorney,  and  proved 
himself  as  persevering  and  efficient  in  the  prosecution  of 
criminals  of  all  grades  as  the  former  had  been.  Indeed,  he 
became  as  obnoxious  to  the  criminal  class  by  the  energetic 
manner  in  which  he  discharged  his  duties,  as  I  had  by  the 
sentence  of  Bridges  and  by  my  other  official  acts  in  the 
discouragement  of  crime,  and  threats  against  us  both  be- 
came more  pronounced;  Mr.  Cook  received  some  anonymous 
letters  of  a  threatening  character,  but  we  heeded  them 
little,  feeling  assured  that  if  the  criminal  classes  really 
meant  injury  they  would  not  put  us  on  our  guard  by  letting 
us  know  it,  and  also  feeling  assured  that  a  former  lesson  had 
not  been  forgotten.  When  the  term  closed  Mr.  Cook  and 
nwself  started  in  my  buggy  for  Ottawa,  our  home.  The 
road  led  through  Hickory  Grove,  where  there  were  two 
settlers,  Mr.  Bartholemew  and  Mr.  Flag.  The  former 
entertained  travelers  in  his  log  cabin,  and  we  often  stopped 
there  both  before  and  after. 

We  arrived  there  all  right  in  time  for  supper,  had  our 
horse  stabled  and  fed,  and  prepared  to  spend  the  night;  but 
when  the  nearly  full  moon  came  up,  which  rendered  everv- 
thing  almost  as  light  as  day,  we  concluded  to  hitch  up  and 
cross  the  sixteen-mile  prairie  to  Paw  Paw  Grove.  There 
was  not  a  single  settlement  in  the  whole  distance,  but  the 
trail  was  fairly  beaten  and  the  road  good.  We  jogged  along 
leisurely  talking  frequently  of  the  threats  we  had  heard,  but 
entertaining  no  fear  of  their  execution,  till  we  reached  Plum 
Thicket,  six  miles  on  our  way.  This  was  a  little  patch  of 
but  a  few  acres  of  wild  plum  trees  and  very  few  thick  under- 
brush, and  containing  a  few  trees  of  considerable  size,  and 
is  situated  directly  on  the  north  bank  of  Kite  Creek.  This 
dense  thicket  had  been  mentioned  as  a  favorite  rendezvous 
for  horse  thieves,  where  the}'  were  in  the  habit  of  conceal- 
ing their  stolen  property,  and  one  of  us  had  suggested  that 


]  02  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

it  was  a  likely  place  for  them  to  make  an  attack  upon  us  if 
they  so  intended,  but  for  the  reasons  before  stated  we  had 
no  apprehension  of  this.  The  trail  ran  along  on  the  north 
side  of  the  grove  and  as  close  as  possible  to  the  hazel  thicket, 
which  bordered  it.  Into  this  thicket  we  could  not  see  a  yard, 
and  all  was  dark  in  the  somber  gloom  beyond  it.  Just  as  we 
got  opposite  the  middle  of  the  groYe,  one  vrithin  it,  and 
pretty  close  to  us.  hallooed  out :  ''  Who  goes  there  ? "  And 
Mr.  Cook  thinks  he  saw  a  man  in  his  shirt  sleeves  with  a 
rifle  in  his  hand,  but  I  did  not  observe  him.  At  this  I  con- 
fess my  heart  jumped  pretty  well  up  in  my  throat,  and  I 
will  venture  the  opinion  that  it  was  much  the  same  way 
with  Mr.  Cook;  but  I  doubt  if  it  occurred  to  him,  that  as  I 
sat  upon  the  right  side  and  next  the  grove  I  might  possibly 
serve  as  a  shield  to  him,  nor  did  that,  then,  occur  to  me. 

ISTeither  of  us  spoke  a  word  when  we  heard  this  salutation; 
but  I  gave  Snap  a  check  of  the  reins,  which  he  well  under- 
stood, and  went  on  at  a  slashing  trot,  and  in  two  minutes 
passed  through  the  ford  of  the  creek  with  a  great  splash, 
and  up  the  steep  bank  on  the  other  side,  without  losing  a 
single  step  in  his  long  swinging  trot.  Not  a  single  word 
])assed  between  us,  until  we  had  got  a  mile  from  the  ford, 
Avhen  I  inquired  if  his  shotgun,  which  lay  by  his  side,  was 
loaded,  but  he  Avas  not  sure  whether  it  was  or  not.  "We 
passed  over  the  twelve  miles,  of  course,  to  Paw  Paw  Grove, 
canvassing  the  situation  as  we  went  along,  and  soon  con- 
cluded that  there  were  no  horse  thieves  or  -their  sympa- 
thizers in  Plum  Thicket,  but  that  probably  some  innocent 
travelers  had  camped  there  for  the  night,  who,  to  amuse 
themselves,  had  hailed  us  in  the  manner  stated,  and  this  is 
as  near  as  I  ever  came  to  suffering  the  performance  of  the 
many  threats  which  I  have  received  for  the  performance  of 
official  duties. 

Several  other  incidents  happened  when  I  held  the  circuit 
in  Ogle  county,  which,  if  not  instructive,  may  be  a  little 
amusing.  At  one  tarni  on  the  first  day  a  jury  was  sent 
out  in  an  unimportant  case,  which  I  thought  was   a   very 


CIRCUIT  SCENES.  103 

plain  one,  and  expected  a  verdict  after  a  short  deliberation, 
and  was  surprised  to  see  them  come  into  court  after  three 
hours  and  ask  to  be  discharged,  bacause  they  could  not 
agree.  I  sent  them  back  with  the  intimation  that  I  very 
rarely  recognized  the  imjiossibility  of  an  agreement,  especially 
in  such  a  case,  and  certainly  not  without  the  most  ample 
o])portunity  for  deliberation.  They  came  in  with  the  same 
report,  and  were  sent  back  every  day  in  the  week,  till  Satur- 
day morning,  when  they  brought  in  a  verdict,  as  I  thought 
it  should  be.  So  soon  as  the  verdict  was  announced  Mr. 
Peters,  of  counsel  with  the  losing  party,  jumped  to  his 
feet,  and  moved  to  set  the  verdict  aside,  and  in  support  of 
his  motion,  read  an  affidavit  of  his  client,  stating  that  one 
of  the  jurors,  naming  him,  had,  during  one  of  the  nights  of 
the  deliberation,  left  the  jury  room,  and  separated  from  his 
fellow  jurors,  not  being  in  charge  of  any  officer  of  the  court, 
and  had  gone  to  the  tavern,  where  he  had  slept  all  night  in 
bed  with  another  man. 

So  soon  as  this  affidavit  was  read  an  old  farmer  uamed 
Kellogg,  from  Buffalo  Grove,  one  of  the  jurors,  a  hard-fisted 
and  hard-headed  settler,  who  claimed  to  be  and  thought  he 
was  an  oracle  in  his  neighborhood,  jum]ied  to  his  feet,  and 
said:  "Kow,  Judge,  I  never  would  have  agreed  to  that 
verdict  in  the  world,  but  I  knew  you  would  have  to  set  it 
aside,"  and  then  sat  down  with  an  air  of  great  satisfaction. 

Immediately  the  counsel  on  the  other  side  arose  and  read 
an  affidavit  of  the  juror  named,  which  stated  it  was  true; 
that  having  been  worn  out  and  made  sick  by  the  constant 
wrangling  and  disputations  of  one  of  the  jurors  with  the 
other  eleven  for  several  days  and  nights,  he  had  separated 
from  the  other  jurors  and  gone  to  the  tavern,  Avhere  he  had 
slept  in  a  bed  with  Mr.  Peters  that  night,  but  that  not  a 
word  had  passed  between  them  or  between  him  and  any 
other  person  in  relation  to  the  case  under  consideration,  and 
that  he  had  immediately  returned  to  the  jury  room,  and 
there  continued  until  a  verdict  had  been  agreed  upon. 

As  Mr.  Peters  had  nothing  further  to  say,  and  as  I  was 


104      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Avell  satisfied  that  no  improper  influence  had  been  exercised 
upon  the  juror,  I  stretched  the  point  a  little,  and  overruled 
the  motion,  at  which  Mr.  Kellogg  seemed  thoroughly  disap- 
pointed and  disgusted. 

I  confess  to  a  little  surprise  at  the  celerity  with  which  these 
affidavits  must  have  been  prepared,  but  as  I  have  before 
stated  the  circuit  practice  often  required  rapid  thinking  and 
rapid  work,  and  as  it  might  be  that  the  facts  were  obtained 
by  intuition  only,  and  as  neither  party  raised  any  questions 
about  it,  I  did  not  think  it  my  duty  to  do  so. 

I  may  remark,  however,  that  the  jury  had  been  author- 
ized to  seal  their  verdict  and  then  separate  if  they  should 
have  agreed  upon  a  verdict  before  the  (.>pening  of  the  court, 
which  they  did;  an  investigation  might  have  ex])lained  how 
the  facts  were  obtained,  and  the  affidavits  so  promptly  pre- 
pared. 

There  was  practicing  at  that  bar  an  old  bachelor  named 
Fuller,  who  was  a  very  good  lawyer,  but  had  his  peculiari- 
ties, as  old  bachelors  are  frequently  supposed  to  have.  One 
of  these  peculiarities  was  that  he  was  constantly  in  fear  of 
taking  cold,  to  avoid  which  calamity,  except  in  very  pleas- 
ant weather,  he  wore  over  his  dress  coat  a  surtout  coat  with 
the  skirts  cut  off  at  the  hips. 

On  the  opposite  side  of  the  river  resided  an  English  fam- 
ily of  the  name  of  Henshaw,  who  had  associated  in  good 
society  in  the  old  country,  and  here  entertained  their  friends 
with  great  hospitality.  Some  young  lady  friends  were  vis- 
iting them  from  Chicago,  who  much  admired  Mrs.  Ilen- 
shaw's  mode  of  cooking  game,  which  was  then  very  abun- 
dant there.  One  of  them  inquired  of  Mrs,  Henshaw  how 
she  managed  to  have  such  tender,  delicious  venison,  and 
she  promptly  replied  that  she  hung  it  up  by  the  tail  till  it 
dropped  off.  A  few  days  later  the  young  ladies  crossed  the 
river  to  do  some  shopping  in  town,  and  Avhcn  they  returned 
she  inquired  of  them  whom  they  had  seen,  when  one  of 
them  replied,  that  among  others  they  had  met  Mr.  Fuller 
in  the  store  where  they  were  trading,  when  Mrs.  Henshav/ 


CIRCUIT  SCENES.  105 

inquired  how  they  liked  Mr.  Fuller.  The  reply  was  that  he 
was  a  very  pleasant  gentleman,  but  he  appeared  to  have 
been  treated  as  she  treated  her  venison,  and  so  he  must  be 
ripe,  if  not  tender  or  delicious.  Let  me  say  to  the  credit  of 
Mr.  Fuller  that  he  subsequently  got  married. 

Mr.  Fridley  had  preceded  Mr.  Cook  as  before  stated,  as 
prosecuting-  attorney  in  the  ninth  circuit,  and  during  his 
administration  a  case  of  mavhem  was  sent  down  to  Oole 
countv  bv  a  chans^e  of  venue  from  Jo  Daviess  countv. 
When  the  jirosecutor  was  put  upon  the  stand  he  showed  u]) 
as  a  well  built,  powerful  man,  while  the  prisoner  was  rather 
a  small  man,  and  appeared  as  if  he  would  be  no  match  for 
the  prosecutor  in  a  fight;  but  there  was  one  eye  half 
forced  from  its  socket,  with  a  repulsive  white  appearanc?, 
which  showed  that  he  had  got  much  the  worse  in  the  dis- 
pute. A  brother  of  the  complainant,  and  another  jiersoii 
were  present  at  the  mill.  The  prosecutor  and  his  brother 
both  swore  that  the  prisoner  was  the  aggressor,  while  the 
indifferent  b\^stander  testified  that  the  complainant  had 
commenced  the  fight.  All  of  the  witnesses  were  examined 
in  great  detail  from  the  beginning  to  the  end,  showing  the 
progress  and  the  end  of  the  scrimmage.  There  were  great 
discrepancies  in  the  statements  made  by  the  brothers  and 
the  third  witness,  and  as  the  science  of  jurisprudence 
had  not  so  far  progressed  as  to  offer  a  high  premium  for 
perjury  by  allowing  the  prisoner  to  swear  in  his  OAvn  excul- 
pation, the  evidence  closed  with  two  witnesses  against  one. 
Mr.  Dickey,  who  was  defending  the  prisoner,  to  overcome 
this  advantage,  in  summing  up  to  the  jury  pointed  out 
many  inconsistencies  in  the  statements  of  the  witnesses  for 
the  people,  and  insisted  that  the  story  told  by  his  witness 
was  the  most  probable  and  natural  for  the  occurrences  of 
such  a  fight,  and  said  that  if  Scott  or  Bulwer  or  Cooper,  or 
any  other  great  novelist,  were  going  to  describe  such  a  fight 
in  a  novel  they  would  describe  it  just  as  his  witness  had 
testified  to  this  one,  simply  because  it  was  most  probable 


lOG      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

and  natural — most  consistent  with  human  action  under  such 
conditions. 

In  reply  to  this  Fridley  in  his  closing  speech  said  that 
Mr.  Dickey  had  told  them  that  if  a  novelist  Avas  going  to 
])ut  in  his  novel  an  account  of  such  a  fight  as  this  was,  he 
would  ])ut  it  down  just  as  his  witness  had  stated  it  here. 
"  Well,"  said  Mr.  Fridley,  "  I  agree  with  Mr.  Dickey  in  this. 
Now  what  does  a  novelist  do,  when  he's  going  to  write  a 
novel?  He  just  sits  down  and  invents  the  infernalest  lie 
he  can  think  of.  Then  he  tells  the  story  in  his  book,  and 
that's  just  the  way  with  Mr.  Dickey's  witness,  ile  just 
invented  this  big  lie,  and  then  came  here  and  told  it  to  you, 
but  lie  didn't  expect  you  to  believe  it  any  more  than  you 
would  a  novel.  Mr.  Dickey  was  right  in  what  he  said  and 
he  don't  believe  it  either." 

This  was  a  shot  fatal  to  an  otherwise  promising  case. 
The  prisoner  was  convicted  and  sent  to  the  penitentiary. 

X. 

STORIES    AND    INCIDENTS    OF    TKIALS. 

I  have  had  occasion  to  mention  Mr,  Fridley  as  prosecuting 
attorney  and  as  an  actor  in  some  of  the  circuit  scenes  in 
Ogle  county,  and  as  I  shall  probably  have  occasion  to  men- 
tion his  name  hereafter,  I  may  be  pardoned  a  few  lines 
descriptive  of  him  as  a  lawyer. 

Benjamin  F.  Fridley  Avas  certainly  a  man  of  some  remark- 
able characteristics.  His  mind  was  clear  and  ]3enetrating, 
his  observations  exceptionally  acute;  his  study  of  mankind 
was  much  more  profound  than  his  study  of  the  law.  He 
was  witty  without  knowing  it,  and  his  sense  of  the  ludi- 
crous was  really  brilliant  without  his  appearing  to  a])]3re- 
ciate  it.  I  scarcely  ever  knew  him  to  laugh,  while  his  quaint 
suggestions  would  sometimes  ]:>rovoke  laughter  in  others, 
though  generally  these  were  made  in  so  solemn  and  matter- 
of-fact  a  way  as  not  to  provoke  boisterous  laughter,  but 
rather  a  quiet  internal  satisfaction. 


BENJAMLN    F.    FRIDLEY. 


CIRCUIT  SCENES.  107 

He  readily  perceived  the  vital  points  of  a  case,  though 
Avheu  his  interest  could  be  subserved  therel^y  he  could  a])pear 
t(j  be  as  stolid  as  a  block  about  them.  His  primary  educa- 
tion Avas  very  limited,  and  his  orthography  Avas  nearly  as 
remarkable  as  that  of  Chief  Justice  Wilson,  who  always 
assumed  that  the  proper  way  to  s])ell  any  word  was  to  use 
as  many  letters  as  could  possibly  be  appro]iriated  for  the 
])urpose.  I  observed  once,  when  sitting  beside  him  on  the 
bench,  and  Stephen  T.  Logan  was  arguing  a  case  and  quoted 
f r<;>m  Dana's  rejiorts,  that  in  making  a  note  of  it  he  Avrote  it 
down  Dahioj;  and  yet  any  one  who  will  read  over  his  opin- 
ions will  observe  that  he  was  really  a  fine  scholar,  and  a 
clear  and  perspicuous  writer. 

His  opinions  will  compare  favorably  with  those  of  any 
other  judge  to  be  found  in  our  reports.  With  this  example 
before  us  we  are  not  at  liberty  to  condemn  Mr.  Fridley  for 
his  bad  spelling.  He,  too,  was  a  very  poor  reader,  but  by 
pauses,  repetitions  and  em])hasis,  he  could  cover  this  up 
most  ingeniously,  and  would  manage  to  give  what  he  read 
a  meaning  to  suit  himself.  I  never  saw  evidence  that  he 
had  ever  read  a  literary  work  in  his  life  and  1  doubt  if  he 
ever  read  a  lavr  book  through,  but  he  knew  a  great  deal  of 
law,  and  what  he  did  know^  he  was  able  to  turn  to  the  very 
best  account.  He  learned  his  law  from  his  observations  in 
courts  or  in  conversations  with  other  law^yers.  When  he 
heard  a  proposition  of  law  stated  for  the  first  time  he  could 
tell  intuitively  whether  it  was  good  law,  by  determining  in 
his  own  mind  if  it  ought  to  be  law.  When  it  suited  his 
jHirpose  he  would  pretend  to  be  ignorant  of  a  principle 
which  he  well  understood,  and  would  pretend  to  be  unaljle 
to  understand  a  ruling  which  he  perfectly  comprehended. 

He  was  the  originator  of  many  aphorisms,  which  I  often 
hear  repeated,  the  author  of  which  is  not  generally  known; 
for  instance :  Fridley  and  I  were  appointed  by  Judge  Ford 
at  the  DeKalb  Circuit  Court  to  defend  an  impecunious 
horse-thief.  AVhen  Ave  Avere  congratulating  ourselves  tliat 
the  eA'idence  was  quite  insufficient  to  convict  him,  as  a  last 


108      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

resort,  the  officer  wlio  arrested  him  was  put  upon  the  stand, 
who  testified  that  the  prisoner  had  confessed  to  him  that 
he  had  stolen  the  horse.  At  this  point  the  court  adjourned 
for  dinner.  When  walking  up  to  the  hotel  together,  1  re- 
marked to  Fridley  that  a  very  good  case  had  been  badly 
spoiled  by  that  last  witness.  "  Yes,"  answered  he,  "  in  this 
country,  if  a  man  is  amind  to  be  a  darn  fool,  there  is  no 
law  agin  it." 

After  our  man  was  sent  to  the  penitentiary  I  repeated 
this  to  the  judge  and  lawyers  present,  who  seemed  to  think 
it  a  very  forcible  and  novel  way  of  stating  a  plain  propo- 
sition, and  I  have  often  heard  it  repeated  since  to  illustrate 
a  great  variety  of  conditions  to  which  it  was  applicable. 

Fridley  was  state's  attorney  for  two  years  during  my  ad- 
ministration on  the  circuit  bench,  and  he  was  certainly  a 
most  efficient  prosecutor;  in  the  main  he  was  just  and  fair, 
but  when  fully  convinced  that  the  prisoner  was  guilty,  he 
was  sure  to  convict  him  in  one  way  or  another.  When  the 
emergency  required  it,  he  exceeded  all  men  I  ever  knew  to 
worm  in  illegal  testimony,  and  he  would  contrive  to  make  it 
tell,  when  it  was  ruled  out,  but  he  would  do  it  in  such  a  way 
as  to  avoid  censure,  and  yet  to  make  the  very  ruling  out  of 
the  evidence  tell  against  his  opponent,  sometimes  by  an  af- 
fectation of  illiteracy.  The  first  time  he  went  round  the 
circuit  as  prosecutor,  many  of  the  lawyers  evidently  thought 
they  would  have  a  fine  time,  and  sought  to  expose  his  want 
of  education  in  various  wa3^s,  and  particidarly  by  moving  to 
quash  his  indictments  for  bad  spelling  and  bad  grammar, 
which  they  would  parade  to  the  amusement  of  tlie  audience; 
but  these  were  generally  overruled,  as  they  expected  they 
would  be,  but  this  was  invariably  followed  by  a  successful 
prosecution,  whether  the  prisoner  was  guilty  or  innocent,  so 
that  it  was  not  long  before  this  amusement  was  found  to  be 
too  expensive  to  be  indulged  in,  unless  the  defense  was 
deemed  so  clear  that  conviction  was  thought  to  be  impos- 
sible. 

When  I  was  holding  the  Kane  Circuit,  the  grand  jury 


CIRCUIT  SCENES.  109 

came  into  court,  and  com])lained  that  they  had  found  an 
indictment  against  a  man  for  larceny,  but  that  the  state's 
attorney  refused  to  draw  the  indictment;  whereupon  Mr. 
Fridley  stated  that  he  had  heard  all  the  evidence  before  the 
grand  jury,  and  was  certain  that  no  conviction  could  be  had: 
tliat  the  man  complained  of  had  found  an  old  ])lowshare  in 
the  weeds  by  the  side  of  the  road,  and  supposing  that  it  had 
been  lost  or  thrown  away,  had  thrown  it  into  his  wagon  and 
taken  it  home,  without  any  felonious  intent;  and  that  he  did 
not  deem  it  his  duty  to  put  the  county  to  the  expense  of  a 
useless  trial.  I  told  him  that  he  had  better  draw  the  indict- 
ment, and  when  it  should  be  returned  into  court  he  could  do 
with  it  as  he  thought  best. 

The  defendant  was  a  German,  a  middle-aged,  well-to-do 
farmer,  and  not  having  well  understood  what  had  taken 
place  in  court,  was  greatly  alarmed  upon  learning  that  he 
had  been  indicted  for  stealing  the  old  plowshare,  and  in 
hot  haste  employed  Mr.  Peters  to  defend  him.  Mr.  Peters 
feeling  that  he  was  in  conscience  bound  to  do  something  to 
earn  the  fat  fee  which  he  intended  to  charge  the  wealth  v 
old  German,  and  in  order  to  anticipate  a  nolle  j>ros.  by 
Fridley,  hastened  to  make  a  motion  to  quash  the  indictment 
in  a  rather  ostentatious  way,  raising  the  most  trivial  objec- 
tions which  he  argued  in  a  way  to  give  the  impression 
that  the  state's  attorney  did  not  understand  his  business, 
although  in  conclusion  he  tried  to  smooth  it  over,  as  if  he 
feared  to  wound  Mr.  Fridley's  susceptibilities.  When  he 
closed  I  promptly  overruled  the  motion  to  quash  witliout 
hearing  from  Mr.  Fridle}^,  when  Mr.  Peters  turned  to  the 
state's  attorney  with  a  rather  consequential  air,  and  asked 
him  Avhat  he  proposed  to  do  with  the  case,  expecting  no 
doubt  a  nolle  pros,  at  once,  but  Fridley  was  fairly  aroused 
by  this  motion  to  quash,  and  Avith  the  greatest  coolness 
rose  and  replied  that  he  proposed  to  try  it  and  to  convict 
the  prisoner,  too;  that  upon  a  partial  understanding  of  the 
case  before  the  grand  jury  he  had  believed  that  the  prisoner 
had   found   the  plowshare,  and  picked   it  up   innocently, 


110       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

l3ut  on  a  more  thorough  examination  of  the  evidence,  and 
the  discovery  of  new  facts,  which  showed  that  the  prisoner 
had  concealed  it  among  some  old  iron  in  a  loft,  he  was  con- 
vinced it  was  a  most  flagrant  case  of  deliberate  larceny, 
which  it  was  his  duty  to  prosecute  to  the  utmost;  that  he 
was  now  convinced  that  the  grand  jury  was  right,  and  that 
he  had  been  wrong,  and  that  he  Avould  show  the  court  and 
jury  how  wrong  he  had  at  first  been,  and  concluded  by  say- 
ing, "  Let  a  jury  come." 

There  was  a  snap  in  his  dark,  keen  eye,  shining  out  of  a 
solemn,  stoical  countenance,  which  showed  that  he  was  much 
in  earnest. 

Mr.  Peters  now  appreciated  his  peril  and  the  indiscretion 
he  had  committed.  The  effect  of  Mr.  Fridley's  statement 
in  court  was  already  parried.  He  had  no  knowledge  of  the 
facts  of  the  case  in  detail,  and  he  feared  there  might  be 
something  which  might  be  successfully  urged  against  him. 
It  was  a  hot  day  in  June,  and  the  percpiration  burst  out  in 
great  beads,  covering  his  naked  pate  and  fat  face,  and  run- 
ning down  his  cheeks  in  a  torrent.  A  jury  was  called  and 
the  trial  began — and  it  was  a  trial. 

During  the  prosecution  there  was  a  combination  of  mild- 
ness of  manner  and  ferocity  of  effect  which  I  have  scarcely 
seen  equaled.  The  trial  lasted  until  nearly  dark,  when  the 
jury  was  sent  out,  and  I  adjourned  court  for  supper. 

When  the  court  met  after  tea  the  jury  brought  in  a  ver- 
dict of  '^  guilty."  The  poor  German  almost  fainted  when 
he  was  informed  of  the  verdict,  and  the  perspiration  rolled 
from  Mr.  Peters  in  more  copious  streams  than  ever  before, 
while  Fridley  sat  as  calm  and  immovable  as  a  statue.  A 
motion  was  immediately  made  for  a  new  trial,  and  as  it  was 
in  tlie  evening  of  the  last  day  of  the  term,  I  told  Mr.  Peters 
that  I  would  hear  from  the  state's  attorney,  who  simply  said 
as  it  was  late  he  vrould  leave  it  to  the  court.  I  then  summed 
up  the  evidence,  briefly  showing  that,  in  my  opinion,  the 
plowshare  had  been  picked  up  without  any  felonious  intent, 
and  concluded  by  ordering  a  new  trial. 


CIRCUIT  SCENES.  Ill 

Mr.  Peters  then  arose,  as  mild  a  mannered  man  as  one 
often  sees,  turned  to  Mr.  Fridley,  said  in  a  rather  soothing 
voice :  ''  After  hearing  the  views  of  the  court  on  the  subject, 
I  appeal  to  yo^^  if  3^ou  consider  it  your  duty  to  prosecute 
this  case  further  ? "  Fridley  arose,  and  in  a  very  calm  voice 
said,  "  Oh,  Mr.  Peters,  if  j^ou  cease  to  occupy  a  hostile  atti- 
tude, I  will  dismiss  the  case." 

Mark  Fletcher  was  clerk  of  the  Circuit  Court  of  Kane 
County,  and  a  most  excellent  clerk  he  was,  too.  He  had  a 
vein  of  quiet  humor  about  him  in  which  he  frequently  in- 
dulo^cd.  He  had  taken  an  American  silver  dollar  and 
placed  it  on  the  outside  of  his  Bible,  on  which  he  adminis- 
tered official  oaths.  He  then  ])laced  it  in  his  press  and 
made  a  deep  and  distinct  impression  of  the  coin  on  the  cover 
of  the  book,  on  the  opposite  cover  of  which  there  was  a 
cross.  "When  asked  Avhy  he  had  the  impression  of  the  dol- 
lar on  the  book,  he  replied  that  vrhen  he  swore  a  Catholic 
he  presented  that  side  on  which  the  cross  was  shown,  but 
when  he  swore  a  Yankee,  ho  jiresented  that  side  of  the  book 
on  which  the  dollar  was  shown. 

At  one  term  of  the  court  a  case  of  divorce  was  tried  in 
Avhich  a  Presbyterian  minister  from  Elgin  was  the  com- 
plainant. He  ]^roved  a  pretty  strong  case  of  the  miscon- 
duct of  the  defendant  by  several  witnesses  brought  from 
Quincy,  Illinois,  but  not  being  entirely  satisfied,  I  held  the 
case  over  for  further  consideration.  A  day  or  two  after  I 
called  the  case  up,  reviewing  the  evidence,  and  expressing 
my  doubts  about  its  sufficiency  and  the  hope  that  some  fur- 
ther evidence  might  be  produced  which  would  remove  my 
doubts.  Some  bystander  from  Elgin,  having  misunder- 
stood what  I  had  said,  rushed  away  in  hot  haste  and  in- 
formed the  clergyman  that  I  had  granted  his  divorce. 
Whereupon,  the  same  evening  he  was  married  to  a  sister  of 
his  flock,  but  after  two  days  of  wedded  bliss  he  learned,  to 
his  consternation,  that  I  had  not  decided  the  case  at  all. 

He  immediately  started  for  Geneva,  and  rushed  into  the 
court  in  breathless  haste  just  as  I  was  about  to  adjourn  it  for 


112      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  term,  and  made  known  the  pli,o-ht  in  which  he  found 
himself.  His  despair  was  unmistakable.  I  allowed  him  to 
ba  sworn.  His  testimony  rGmoved  all  doubt  and  I  granted 
the  decree.  I  was  told  that  he  hastened  back  to  Elo^in  with 
as  much  speed  as  he  had  shown  in  his  way  down,  and  was 
married  over  again  as  quickly  as  some  one  could  be  found 
to  perform  the  ceremony. 

At  another  term  of  the  same  court  three  men  were 
indicted  for  the  burglary  of  a  log  cabin  in  the  country  in 
which  lived  a  Scotch  family.  The  man  of  the  house  was 
away  at  the  time;  only  the  wife  and  several  small  children 
were  in  the  cabin  and  necessarily  she  was  the  only  v\-itness. 
All  of  the  burglars  were  masked,  but  she  recognized  them 
all  bv  their  voices,  for  thev  lived  in  the  neiorhborhood  and 
she  knew  them  all.  The  manner  in  which  she  gave  her  tes- 
timony was  very  convincing;  indeed,  I  have  rarely  seen  a 
witness  whose  testimony  more  favorably  impressed  me.  On 
the  ci'oss-examination  by  their  counsel,  she  was  required  to 
detail  with  great  particularity  every  act  which  each  one  of 
the  defendants  did  while  ransacking  the  house  for  plunder. 
During  the  examination  she  had  stated  that  one  of  the 
defendants  had  done  some  act  which  I  do  not  now  remem- 
ber. Instantly  that  defendant  whispered  something  to  his 
counsel,  who  nodded  his  head  and  Avent  on  with  the 
examination  on  the  line  which  he  was  then  pursuing; 
after  a  while  he  came  back  to  the  same  point  and  led  her 
over  the  same  ground  as  before,  but  when  she  came  to 
this  particular  point  she  stated  it  differently  from  her 
former  statement.  Counsel  then  asked  her  if  she  had  not 
formerly  stated  it  was  so  and  so;  she  stated  that  she  had 
not,  or  if  she  had  it  was  a  slip  of  the  tongue. 

This  was  most  convincing  proof  to  me  that  her  statements 
were  certainly  true,  for  if  the  defendant  had  not  been 
present  he  could  not  have  known  that  she  made  a  mistake 
in  relating  the  transaction,  and  there  could  be  no  doubt  that 
his  whispered  communication  to  his  counsel  told  him  of  that 
mistake.     However,  the  state's  attornev  had  not  seen  the 


CIRCUIT  SCENES.  113 

transaction  as  I  observed  it,  nor  did  I  tell  him  of  it  until 
afterward.  Indeed,  I  was  convinced  that  the  jury  would 
convict  them,  and  so  were  they,  for  they  disapjieared  that 
night,  being  out  on  bail.  I  kept  the  jury  together  till  the 
sheriff  brought  the  defendants  back.  He  found  them  stowed 
away  in  the  hold  of  a  vessel  in  the  Chicago  harbor  which 
was  about  to  sail  for  the  lower  lakes.  It  was  late  in  the 
evening  of  the  last  day  of  the  court  when  he  returned  with 
his  prisoners,  and  I  received  the  verdict,  and  sentence  was 
passed.  The  severity  of  the  punishment  inflicted  induced  the 
suspicion  that  the  jury  had  probably  changed  that  part  of 
their  verdict  during  the  two  days  they  had  been  kept  to- 
gether waiting  for  the  return  of  the  prisoners. 

XI. 

LIFE    ON    THE    CIRCUIT. 

I  ol)serve  in  the  daily  press  that  some  one  has  introduced 
into  the  Legislature  a  bill  authorizing  the  judges  of  courts 
to  charge  the  juries  in  cases  tried  before  them  as  they  may 
think  the  merits  of  the  case  require,  without  being  strictly 
confined  to  written  instructions.  Such  was  the  law  during 
the  early  years  of  my  judicial  service,  and  in  important  cases 
I  frequently  adopted  that  mode,  deeming  it  possible  in  that 
way  to  assist  the  jury  in  arriving  at  correct  conclusions.  In 
New  York,  where  I  had  studied  my  profession,  such  was  the 
universal  practice  of  the  courts.  My  observation  there  had 
taught  me  that  the  greatest  care  was  necessary  for  the  judge 
not  to  seem  to  take  sides  with  either  party — not  to  express 
any  opinion  or  bias  as  to  which  party  should  succeed — but 
simplv  to  review  the  evidence,  if  necessary,  with  exact  fair- 
ness, and  to  clearly  state  the  principles  of  law  applicable  to 
it.  There  I  had  observed  that  whenever  a  judge  assumed 
the  role  of  an  advocate,  his  opinions  at  once  ceased  to  have  a 
preponderating  influence,  and  were  not  treated  with  any 
more  consideration  than  were  those  of   the  lawver  advocat- 


114       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

ing  the  same  side;  whereas  the  judge  who  showed  perfect 
impartiality  was  listened  to  with  the  greatest  deference  and 
confidence.  By  these  observations  I  profited  in  my  mode  of 
charging  juries,  and  I  now  believe  that  I  could  do  more  in 
that  way  to  assist  juries  in  arriving  at  correct  conclusions 
than  I  could  have  done  by  adhering  strictly  to  the  written 
instructions  asked. 

At  the  next  term  of  the  court  in  Kendall  county  after  the 
present  law  requiring  written  instructions  to  be  adhered  to 
by  the  courts,  Mr.  Butterfield,  who  had  practiced  for  many 
years  in  the  New  York  courts,  was  in  attendance. 

Mr.  Dickey,  who  was  much  pleased  with  the  passage  of 
the  new  law,  spoke  to  several  members  of  the  bar  of  it,  and 
among  others  addressed  Mr.  Butterfield,  and  asked  him  if 
he  did  not  think  it  an  excellent  law.  "  Oh,  yes,"  said  Mr. 
Butterfield,  "  it  is  a  most  excellent  law.  Tie  up  the  hands 
of  the  court,  and  turn  loose  the  pettifoggers,  and  undoubted 
justice  will  always  be  done."  I  thought  then,  and  I  still 
think,  that  this  Avas  a  forcible  way  of  stating  an  undoubted 
truth.  If  a  judge  is  worthy  of  the  seat  he  occupies,  he  is 
entitled  to  confidence  and  respect,  and  should  be  entrusted 
with  the  impartial  administration  of  justice  in  his  court. 
Courts  are  instituted  to  administer  impartial  justice  accord- 
ing to  law  to  all  suitors  before  them,  and  not  to  sit  Iw  and 
see  justice  perverted  because  one  lawyer  happens  to  be 
smarter  than  the  other,  and  should  not  be  compelled  to  act 
as  mere  stakeholders  between  the  advocates. 

Mr.  Butterfield  was  undoubtedly  a  very  able  lawyer,  and 
would  often  illustrate  an  idea  by  comparison,  with  great 
force,  which,  however,  was  frequently  more  apt  than  con- 
vincing. AYhen  the  case  of  the  Shawneetown  Bank  was 
before  the  Supreme  Court  he  represented  the  bank.  That 
bank  had  been  created  and  was  doing  business  before  the 
second  constitutional  amendment  had  been  adopted.  That 
constitution  prevented  the  creation  of  any  new  banks. 
"When  the  charter  of  the  old  bank  was  about  to  expire  by 
limitation,  a  law  was  passed  extending  its  charter,  and  the 


CIRCUIT  SCENES.  115 

question  was,  whether  this  was  the  creation  of  a  new  l)ank, 
which  was  prohibited  by  the  constitution.  In  arguing 
the  case  before  the  Supreme  Court  Mr.  Buttertiekl  said: 
''  May  it  please  the  court,  Avhen  God  lengthened  out  the  days 
of  old  Hezekiah,  was  he  the  same  old  Hezekiah  as  before  or 
a  new  Hezekiah  ? " 

In  the  olden  time  judges,  lawyers,  jurors  and  witnesses 
all  had  to  be  accommodated  at  some  little  hostelry  at  the 
county  seat,  where  it  would  take  two  or  three  tablefuls  to 
feed  all  the  guests;  then  when  the  bell  rang  for  a  meal 
there  would  be  a  rush  for  the  dining  room,  when  none  stood 
upon  the  order  of  their  going.  A  table  was  usually  placed 
near  the  door,  upon  which  the  guests  as  they  passed  in  threw 
their  hats  or  wraps  in  a  promiscuous  pile.  Mr.  Helm,  a  resi- 
dent lawyer  of  Yorkville,  a  man  of  full  habit  and  pretty 
large  proportions,  in  going  out  had  some  difficulty  in  find- 
ing his  own  hat,  and  in  his  efforts  tried  on  several  which 
Avould  not  fit  him;  all  were  too  small,  for  his  hat  was  nearly 
as  big  as  a  bee-hive.  He  had  just  laid  down  a  small  hat, 
which  would  barely  sit  upon  the  top  of  his  head,  and  picked 
up  his  own,  when  Mr,  Butterfield  came  along,  and  claimed 
the  little  one  which  he  was  about  to  lay  dovrn,  when  Mr. 
Helm  remarked  :  '"  Brother  Butterfield,  it  seems  to  me  you 
have  a  very  small  head.  My  hat  Avould  cover  your  face  as 
well  as  your  head."  "  Yes,  yes,  Brother  Helm,"  said  Butter- 
field, "3''ou  have  a  very  thick  head  but  mine  is  a  good  deal 
the  longest." 

His  wit  was  generally  of  an  unfortunate  kind,  for  it 
usually  partook  of  caustic  sarcasm,  "which  left  a  rankling 
fester  in  the  feelings  of  its  object,  and  to  indulge  in  this 
vicious  habit  he  sometimes  could  not  resist  the  temptation 
to  even  endanger  a  cause.  I  recollect  once  when  he  was 
arguing  a  case  before  the  Supreme  Court,  Stephen  T. 
Logan,  who  was  from  Kentucky  and  was  a  laudable  admirer 
of  the  judiciary  of  that  State,  had  quoted  a  very  pertinent 
case  from  Pertle's  Digest.  When  Butterfield  came  to 
answer  him,  instead  of  trying  to  explain  away  the  case  he 


116       EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

fell  to  abusing  and  ridiculing  the  Kentucky  courts  in  such 
a  way  as  to  be  offensive  to  the  admirers  of  the  eminent 
judges  who  had  adorned  the  benches  of  that  State,  and 
especially  did  he  ridicule  Pertle's  Digest.  "  Why,''  said  he, 
"  this  Pertle's  Digest  may  be  good  law  south  of  the  Ohio 
river,  but  whenever  it  gets  north  of  that  stream  it  should 
be  taken  up  and  impounded  as  an  estray,  but  no  man  except 
a  Kentuckian  would  ever  come  and  claim  the  property  and 
pay  charges." 

In  arguing  a  case  once  he  was  met  squarely  in  the  face  by 
a  statute  passed  by  our  Legislature,  and  he  had  nothing  to 
do  but  to  abuse  the  law  and  the  lawmakers  who  passed  it. 
It  was  an  old  statute  and  was  evidently  a  surprise  to  him. 
In  his  tirade  against  the  Legislature  that  passed  the  law,  he 
drew  pictures  of  the  members  of  the  General  Assembly, 
and  among  other  things  said  :  "  Their  only  means  of  sup- 
port is  to  hunt  coons  and  go  to  the  Legislater."  (lie  always 
pronounced  this  and  similar  words  in  that  way.)  Judge 
Lockwood,  who  had  been  getting  mad  for  some  time  at  this 
vicious  tirade,  broke  in  and  told  Mr.  Butterheld  that  he 
would  not  sit  there  and  hear  a  co-ordinate  branch  of  the 
government  so  unjustly  vilified. 

But  let  me  come  back  to  the  Circuit  Courts. 

At  a  term  of  the  Circuit  Court  of  Peoria  County  which 
was  held  by  Judge  Koerner,  with  whom  I  had  exchanged 
circuits  for  the  time  during  Fridlcy's  administration  as 
state's  attorney,  he  had  indicted  a  man  in  that  court  for 
stealing  a  five  dollar  bank  note,  of  the  value  of  five  dollars, 
which  at  that  time  was  a  penitentiary  offense.  When  the 
note  was  produced  on  the  trial  it  proved  to  be  from  some 
eastern  bank,  and  as  the  larceny  was  clearly  proved,  his 
counsel  directed  their  attention  exclusively  to  reduce  the 
value  of  the  bill  to  less  than  five  dollars,  and  so  save  their 
client  from  the  penitentiary.  They  produced  some  of  the 
bank  officers  by  whom  they  proved  that  that  money  Avas  at 
a  discount  of  two  or  three  per  cent. 

To    rebut   this,   Fridley  called   one   of    the   jurors,  Mr. 


(lUSTAVUS    K(  )K1{NER. 


CIRCUIT  SCENES.  117 

Stephen  Voris,  who  was  a  prominent  merchant  of  the  phice- 
Mr.  Yoris  testified  that  most  of  the  currency  in  circuhition 
there,  consisted  of  eastern,  bank  notes,  most  of  which,  in- 
cluding this  bill,  passed  at  par  in  ordinar}^  business  transac- 
tions; that  he  received  it  at  par  at  his  store  in  payment  for 
goods  sold,  and  also  in  payment  for  accounts  and  notes  due 
him.  He  introduced  sev^eral  of  the  merchants  of  the  place 
Avho  testified  to  the  same  thing,  and  that  it  was  only  when 
they  had  to  buy  eastern  exchange,  or  when  they  wanted  to 
get  specie  for  a  legal  tender  or  the  like,  that  they  had  to  pay 
a  premium  when  using  this  kind  of  money.  The  defend- 
ant's counsel  insisted  strenuously  that  the  statute  meant  gold 
and  silver,  Avhich  was  the  only  legal  tender  at  the  time 
when  the  limit  was  fixed  which  fixed  the  value  of  the 
things  stolen,  which  determined  whether  the  offense  should 
be  punished  in  the  penitentiary  or  not.  But  Fridley  was 
equal  to  the  emergency.  In  summing  up  to  the  jury  he 
pointed  out  to  them,  that  it  -\ras  their  province  to  de- 
termine the  value  of  the  goods  taken.  "And,"  said  he, 
"you,  Mr.  Yoris,  and  these  other  merchants  here,  would 
take  this  bill  at  par,  in  payment  for  goods  sold  at  your  store, 
or  for  debts  due  you,  without  thinking  to  shave  your  cus- 
tomer two  or  three  cents  on  the  dollar,  but  this  infernal 
rascal  here  ain't  willing  to  steal  it  at  par  !  Such  monstrous 
audacity  should  be  punished  by  a  year  or  two  extra  in  the 
penitentiary."  This  settled  the  prisoner's  case,  but  the  jury 
only  gave  him  a  year  of  punishment. 

Once  when  trying  a  case  in  the  Peoria  Circuit  Court  I 
was  provoked  to  laughter  to  such  a  degree  that  I  was  un- 
able to  control  it.  The  case  was  tried  by  Wm,  L.  May  on 
one  side,  and  by  Knolton  on  the  other.  May  had  received 
a  fair  education,  but  that  was  all.  He  was  a  politician  by 
profession,  and  was  a  fairly  good  lawyer  as  well.  Knolton 
was  a  collegiate  graduate,  but  was  verv  uncouth  in  his  man- 
ners  and  exceedingly  slovenly  in  his  habits.  The  case  in- 
volved the  construction  or  rei)air  of  a  house,  and  in  the 
course  of  the  trial  some  technical  architectural  terms  were 


118  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

used,  one  of  whicli  was  written  out  in  the  pleadings,  which 
May  had  frequent  occasion  to  use  in  the  course  of  his  cross- 
examination.  This  term  was  not  pronounced  as  it  was 
properly  spelled  in  the  pleadings.  Whenever  he  had  oc- 
casion to  use  this  term  he  pronounced  it  as  it  was  spelled. 
Whenever  he  did  this  Knolton  would  correct  him  in  the 
])ronunciation  in  a  low  voice,  but  so  everj^body  could  hear 
liim.  This  was  very  offensive  to  May,  and  every  time  the 
correction  was  repeated  he  got  madder  and  madder.  He 
had  a  very  fair  complexion  and  sandy  hair.  Finally  his 
face  grew  livid  and  his  red  hair  seemed  to  stand  on  end. 
Knolton  did  not  observe  this,  but  kept  on  repeating  the  cor- 
rection as  often  as  opportunity  occurred.  At  length  the 
explosion  came,  when  May  jumped  to  his  feet,  his  powerful 
frame  fairly  trembling  with  emotion;  he  leaned  across  the 
table  right  over  Knolton,  and  brandishing  his  fists  he  ex- 
claimed :  "  Perhaps  you  know,  you  say  you  do !  Perhaps 
you  are  right,  you  say  you  are !  Perhaps  you  are  a  learned 
man,  you  say  you  are !  Perhaps  you  have  been  through 
college,  you  say  you  have !  But  I  never  saw  your  diploma, 
and  I  wouldn't  judge  you  had  by  the  way  you  talk."  Knol- 
ton, who  had  not  observed  the  rising  storm,  turned  partly 
around,  and  looking  into  May's  face  seemed  struck  dumb  by 
the  fearful  expression  on  his  countenance  and  his  wild 
gesticulation,  and  fairly  crouched  down  as  if  to  avoid  an 
attack  which  he  was  in  nowise  prepared  to  resist. 

Now,  this  does  not  seem  very  funny  or  laughable  when 
described  in  words,  so  it  must  have  been  the  accompanying 
incidents  which  made  it  seem  so  supremely  ludicrous  to  me. 
The  sort  of  climax  which  May  poured  out  upon  his  crouch- 
ing victim  before  him  was  uttered  very  rapidly  and  distinctly 
with  all  the  force  and  vehemence  which  his  rage  could 
inspire.  At  least  I  was  so  overcome  Avith  laughter  that  I 
had  to  get  down  beneath  the  bench  as  if  to  pick  up  some- 
thing until  I  could  decently  compose  myself. 

At  the  proper  season  of  the  year  we  usually  passed  up  the 
river  on  a  steamer  from  Peoria  to  Lacon— the  next  court — 


CIRCUIT  SCENES.  119 

and  as  tlie  river  steamers  had  no  regular  times  of  passing 
Peoria,  we  sometimes  had  to  prepare  quickly  for  the  jour- 
ney. At  one  time,  when  it  was  announced  before  the  court 
had  adjourned  that  a  steamer  bound  up  had  arrived,  I  closed 
up  the  business  as  soon  as  possible  and  adjourned  the  court 
and  hastened  at  once  to  the  landing.  Mr.  Peters,  who  had 
been  engaged  until  the  last  moment,  started  down  with  the 
rest  of  us,  but  some  one  reminded  him  that  he  was  in  his 
slippers,  which  sent  him  into  a  shoe  store  which  we  passed, 
where  he  got  a  pair  of  boots,  which  were  tied  together  at 
the  straps,  and  he  came  trotting  after  us  at  the  best  speed  so 
fat  a  man  could  make.  We  all  arrived  in  time,  and  when 
we  went  into  the  cal)in  the  temperature  of  Mr.  Peters  was 
so  high  that  he  concluded  to  continue  in  his  slippers,  and 
not  put  on  his  boots  until  we  should  arrive  at  Lacon.  In 
due  time  we  were  all  assigned  to  state-rooms  and  went  to 
bed.  Some  time  in  the  course  of  the  night  the  watchman 
came  through  the  cabin  crying  fire.  At  this,  of  course, 
every  one  jumped  up.  I  opened  my  state-room  door  to  see 
what  I  could.  At  that  instant  Peters  burst  out  of  an  adjoin- 
ing room  and  rushed  down  the  cabin  to  the  companion"vvay, 
which  was  a  good  way  off,  in  his  drawers,  and  one  of  his 
new  boots  on  a  foot,  while  the  other  was  dragging  after  him, 
hanging  by  the  string  in  the  strap.  The  hair  on  the  back 
of  his  head  seemed  to  stand  out  as  if  charged  with  electricity, 
and  on  his  countenance  was  an  expression  of  anxiety,  not  to 
sa}'"  terror. 

The  scene  was  so  ludicrous  that  I  believe  if  the  boat  had 
been  on  fire  from  stem  to  stern,  I  should  have  laughed  till  I 
cried.  By  the  time  he  reached  the  companionway,  or  head 
of  the  stairs  which  descended  to  the  lower  deck,  word  came 
that  the  fire  was  out,  when  Peters  quietly  hobbled  back  to 
his  room  in  the  midst  of  a  crowd  of  passengers,  who  by  this 
time  got  from  their  state-rooms  into  the  cabin,  mostly  in 
very  light  habiliments.  Then  others  laughed  as  well  as  I. 
The  fright  was  over  and  all  were  more  or  less  en  dishahiUe, 


120  EARLY  BENCH  AND  BAR  OF  ILLINOIS, 

when  the  ludicrous  features  of   the  scene  could  be  well  ob- 
served and  appreciated. 

Quite  different  feelings  were  once  excited  during  the  trial 
of  a  case  in  the  Marshall  Circuit  Court.  That  case  involved 
a  collision  between  the  Prairie  Bird,  which  plied  between 
Peoria  and  Peru,  and  a  descending  steamer,  which  Avas  tow- 
ing along  her  side  a  barge  loaded  with  gunpowder.  As  is 
very  common  in  such  cases,  there  was  great  discrepancy  in 
the  testimony  between  those  on  the  different  boats,  as  to 
their  respective  positions  at  the  time  of  the  collision. 
Several  sportsmen  were  going  up  the  river  on  the  Prairie 
Bird  on  a  duck  shooting  excursion.  Some  of  them  testified 
that  when  they  heard  the  shock  of  the  collision,  they  opened 
the  Avindows  of  their  state-rooms  on  the  port  side,  and  saw 
that  the  boat  was  lying  in  the  water  grass  near  the  shore, 
Avhile  the  pilot  and  several  others  on  the  descending  boat, 
testified  that  she  was  in  the  middle  of  the  river,  Avhich  Avas 
her  place;  that  the  Prairie  Bird  was  ascending  as  if  to  pass 
her  on  the  left  hand  side,  but  that  she  suddenly  changed  her 
course,  as  if  to  cross  the  river,  and  pass  her  on  the  right  hand 
side,  Avhich  brought  her  right  in  front  of  the  boAvs  of  the 
descending  boat,  so  that  to  avoid  the  collision  Avas  impossible. 
The  pilot  said  that  before  the  boat  struck,  he  saAv  that  the 
barge,  loaded  Avith  powder,  the  boAv  of  Avhich  projected  some 
distance  beyond  that  of  the  steamer,  must  inevitably  strike 
the  Prairie  Bird  right  at  the  mouth  of  her  furnaces,  the 
doors  of  Avhich  Avere  open  and  lightened  up  everything 
around  them;  and  he  expected  that  the  ])owder  Avould  become 
ignited,  Avhen  both  boats  and  everybody  on  them  must  bo 
instantly  bloAvn  to  atoms,  and  that  nothing  saved  them  but 
the  fact  that  the  lines  Avhich  held  the  barge  to  the  boat  gaA'e 
Avay,  when  the  barge  rebounded  and  floated  off  in  the  cur- 
rent, and  then  his  boat  crashed  into  the  other  in  such  a  Avay 
as  to  force  the  Prairie  Bird  so  far  onto  his  boAvs  as  to  hold 
her  there,  and  until  he  backed  his  boat  clear  across  the  river 
and  stopped  on  the  other  shore.  The  pilot's  description  of 
the  situation,  and  especially  at  the  time  Avhen  he  realized 


CIRCUIT  SCENES.  121 

that  the  barge  must  crash  into  the  furnaces  of  the  other 
boat,  when  destruction  would  be  certain  to  all,  was  so  vivid 
and  realistic,  that  I  confess  a  shiver  ran  through  my  whole 
frame,  and  I  think  that  many  others  experienced  a  similar 
sensation. 

It  must  indeed  have  been  an  awful  moment  when  he  felt 
certain  that  that  was  to  be  the  last,  not  only  for  himself  but 
for  so  manv  others,  and  then  to  think  what  a  revulsion  of 
feeling  must  have  occurred  when  he  saw  the  lines  part  and 
the  barge  float  innocently  away. 

When  he  came  to  this  part  of  his  testimony,  I  confess  I 
felt  a  relief,  at  least  somewhat  akin  to  that  which  he  ex- 
perienced when  the  incident  occurred. 

XII. 

TRIAL    OF    ME.    LOVEJOT. 

In  my  last  article  I  gave  an  account  of  a  trial  which  took 
place  in  Peoria  county,  of  a  man  who  wanted  to  steal  cur- 
rency at  a  discount,  which  took  place  before  Judge  Koer- 
ner,  with  whom,  as  before  stated,  I  had  exchanged  circuits 
temporarily.  I  had  also  made  a  similar  exchange  at 
another  time  with  Judge  Young,  and  as  all  the  incidents 
given  in  these  papers  are  written  (vicariously)  from  memory 
alone,  I  frequently  slide  over  events,  which  I  find  to  be  a 
very  convenient  mode  of  avoiding  misstatements  when  my 
recollection  is  indistinct. 

I  can  not  resist  this  opportunity  to  state  that  the  kind- 
ness and  courtesy  which  I  received  at  the  hands  of  the  bar 
of  Judge  Koerner's  circuit  and  of  his  personal  friends,  while 
I  was  tilling  his  place  there,  were  very  gratifying  at  the 
time  and  are  still  green  in  my  memory  after  the  lapse  of 
forty-five  years;  nor  can  I  resist  the  inclination  to  state  the 
fact  that  of  the  seventeen  judges  with  whom  I  sat  on  the 
supreme  bench  of  this  State,  Judge  Koerner  and  Judge 
Trumbull  alone  remain,  both  of  whom  possess  the  vigor  and 


12i2  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

elasticity,  both  mental  and  pli3"sical,  of  middle-aged  men,  and 
that  two  of  us  have  been  enabled,  a  considerable  time  since, 
to  celebrate  our  golden  weddings,  and  that  we  are  still 
going  on  toward  another  period  of  those  happy  events. 
While  both  of  these  gentlemen  are  still  actively  engaged  in 
the  practice  of  the  profession,  I  must  enjoy  the  luxury  of 
mental  employment  in  other  ways,  and  hence  it  is  that  I 
have  troubled  the  editor  and  readers  of  this  journal  with 
these  papers  about  the  bench  and  the  bar  of  the  olden 
times. 

I  will  now  proceed  with  other  events  according  to  my  best 
recollections. 

At  a  term  of  the  Circuit  Court  which  I  held  in  Bureau 
county,  the  grand  jury  returned  an  indictment  against  Owen 
Lovejoy,  for  assisting  a  runaway  slave  to  escape.  That  was 
before  the  organization  of  the  republican  party  by  the 
amalgamation  or  co-operation  of  the  whigs  with  the  abo- 
litionists. Previous  to  that  time  the  latter  had  been  equally 
held  in  disestesm  by  both  political  parties,  for  the  simple 
reason  that  to  have  done  otherwise  would  have  amounted  to 
political  suicide.  The  abolitionists  held  and  maintained 
their  opinions  from  the  deepest  conscientious  convictions, 
well  appreciating  that  their  doctrines  must  subject  them  to 
the  charge  of  disloyalty  to  the  constitution  and  laws  of  the 
o-eneral  o-overnment,  which  forbade  them  to  assist  in  the 
escape  of  runaway  slaves  from  the  slave  States,  and  these 
Federal  laws  were  supplemented  by  State  laws,  in  most,  if 
not  all  of  the  free  States,  and  our  black  laws,  as  they  were 
called,  manifested  the  greatest  zeal  in  this  direction. 

Indeed,  I  had  been  in  Chicago  but  a  short  time,  when 
some  overzealous  person  entered  a  complaint  under  our 
statute  against  all  the  negroes  in  town  (some  six  or  eight  in 
number)  for  being  in  the  State  without  free  papers,  which 
was  an  offense  against  the  statutes  as  they  then  stood;  this 
created  consternation  among  these  men,  all  of  whom  had 
come  in  from  the  I*^orthern  States,  where  such  papers  were 
unknoAvn,  and  were  astonished  to  find  that  thev  were  liable 


CIRCUIT  SCENES.  123' 

to  be  convicted  and  sold  into  a  sort  of  slavery  for  the  want 
(^f  the  evidence  which  the  statute  required  of  their  freedom. 
The  laws  here  made  no  provision  for  such  cases,  for  the 
reason,  probably,  that  it  had  never  occurred  to  the  law- 
makers that  a  negro  could  ever  come  from  any  but  a  slave 
State. 

The  County  Commissioners'  Court  was  then  in  session 
here.  I  sent  each  one  of  my  clients  to  bring  up  witnesses 
to  prove  that  he  was  a  free  man  and  came  here  from  a  free 
State,  and  ap])lied  to  the  court  for  free  papers,  not  basing 
my  application  upon  any  statute,  but  upon  the  very 
necessity  of  the  case.  By  this  time  a  large  majorit\^  of  the 
town  and  county  were  from  the  free  States,  while  most  of 
those  from  the  Southern  States  had  no  sympathy  with  a 
prosecution  which  was  so  unjust  and  wicked  as  the  one  noAv 
])ending  before  the  magistrate  outside.  After  a  long  and 
hard  struggle  before  the  court  it  made  an  order  granting 
my  motion,  and  I  was  authorized  to  prepare  the  certificates 
of  freedom  for  each  of  my  clients,  which  Col.  Hamilton 
tlrew  up  in  the  most  elaborate  form  and  had  duly  exe- 
cuted, and  the  seal  of  the  County  Commissioners'  Court 
was  attached;  to  this  was  added  the  signature  of  the 
clerk  and  of  all  the  members  of  the  court.  With  these 
certificates  I  hastened  to  the  maoistrate's  office,  where  the 
case  was  pending,  and  offered  them  in  evidence  in  defense. 
It  was  objected  that  they  were  not  obtained  in  a  manner 
conformable  to  the  statute,  but  the  justice  held  that  they 
were  good  enough  certificates  for  him,  and  discharged  my 
clients,  each  of  whom  walked  proudly  out  of  court  with  the 
certificate  in  his  pocket.  See  act  of  1829,  §  2,  in  Field's 
Eev.  Stat.,  p. -101:. 

I  may  say  here  that  it  was  very  rare  to  find  an  immigrant 
from  a  slave  State,  who  was  not  quite  as  earnest  to  protect 
a  free  negro  in  all  his  rights  as  he  was  to  have  a  runaway 
slave  returned  to  his  master.  As  I  have  said,  both  political 
parties  were  anxious  to  avoid  the  charge  of  being  called 
abolitionists,  and  manifested  an  equal  zeal  for  the  conviction 


124  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

of  Lovejoy.  He  was  tlie  most  prominent  abolitionist  in  the 
northern  part  of  the  State,  able  and  courageous  to  the  last 
degree.  He  was  a  pastor  of  a  church  in  Princeton  with  the 
largest  congregation  of  any  in  the  county,  all  of  whom  were 
pronounced  abolitionists,  and  there  were  many  others  there 
who  did  not  belong  to  his  church  or  congregation,  but  who 
w^ere  scarcely  less  abolitionists  than  he,  and  as  bold  and 
outspoken  on  the  subject.  As  is  usually  the  case,  this  defiant 
and  outspoken  sentiment  engendered  an  equally  zealous 
opposition  to  it,  and  this  state  of  public  feeling  in  the 
county  had  extended  to  all  the  northern  jwirt  of  the  State, 
more  pronounced  in  the  adjoining  counties  than  further 
away,  but  still  active  enough  to  make  the  approaching  trial 
a  subject  of  extensive  interest  and  comment.  Arrangements 
were  made  long  beforehand,  and  money  subscribed  to  bring 
Alvin  Stewart,  a  famous  abolition  lawj^er,  from  Utica,  'N.  Y., 
as  leading  counsel  in  the  defense,  and  it  was  well  known  that 
James  H.  Collins,  of  Chicago,  my  former  law  partner,  and 
an  equally  ardent  abolitionist,  would  take  part  in  the  defense 
of  Mr.  Lovejoy. 

I  had  known  Mr.  Stewart  when  I  was  a  law  student  in 
Utica,  and  had  often  been  present  in  court  when  he  was 
trying  causes.  In  one  respect,  at  least;  he  was  the  most  ex- 
traordinary man  I  ever  saw.  His  face  was  anything  but 
beautiful,  and  there  was  a  mobility  about  its  muscles  which 
enabled  him  fairly  to  gesticulate  with  his  countenance. 
The  distortions  of  his  face,  Vv^hile  supremely  ludicrous,  were 
alwa3^s  suggestive,  and  even  brilliant  at  times,  and  never 
approached  in  the  remotest  degree  the  appearance  of  imbe- 
cility. His  language  was  well  chosen,  but  very  odd.  His 
similes  and  illustrations  were  incongruous  and  yet  very  ex- 
pressive. His  tone  and  accent  were  of  the  most  solemn 
character.  Not  a  smile  was  ever  known  to  rest  upon  his 
face,  and  yet  I  will  undertake  to  say  that  no  man  ever 
listened  to  him  for  ten  minutes  without  being  absolutely 
convulsed  with  uncontrollable  laughter,  no  matter  how 
solemn  or  interesting  his  subject.    After  a  few  sentences  the 


CIRCUIT  SCENES.  1  25 

laughter  would  begin,  when  judge,  jury,  lawyers  and  the 
audience  would  all  yield  themselves  u]j  to  laughter,  which 
they,  at  first,  could  not  restrain,  and  finally  did  not  want  to. 
I  once  heard  him  argue  a  very  common-])lace,  matter-of-fact 
case  before  the  Supreme  Court  of  Xew  York,  when  all  the 
judges  u])on  the  bench  were  fairly  in  convulsions  with 
laughter.  He  never  said  a  sill}^  thing,  but  always  odd  be- 
yond comparison;  it  was  his  tone  and  facial  expressions 
which  provoked  to  laughter  quite  as  much  as  what  he  said. 

It  may  not  be  surprising,  then,  that  knowing  Mr.  Stewart 
as  I  did,  I  was  pleased  to  hear  that  he  was  to  take  part  in 
the  defense  of  Lovejoy,  for  I  knev/  it  would  afford  him  oc- 
casion for  a  supreme  eft'ort  to  display  his  sarcasm,  his 
vituperation,  his  denunciation,  in  language,  tone  and  ex- 
pression so  different  from  that  ever  heard  before,  and 
especially  so  laugh-provoking,  that  I  was  very  anxious  to 
hear  him  again,  and  be  again  shaken  up  with  laughter  as  I 
had  not  been  for  many  years. 

But  Stewart  did  not  come  and  the  defense  fell  upon  Mr. 
Collins  alone.  The  subject-matter  of  the  trial  was  sufficient 
to  crowd  the  house  every  moment,  evincing  the  deep 
interest  felt  throughout  the  community.  The  witnesses 
sworn  were  all  on  one  side.  The  prosecution  proved  that  a 
large  fat  negro  woman  was  domiciled  in  Mr.  Lovejoy's 
house  for  several  days,  and  they  offered  to  prove  by  several 
^vitnesses  that  she  said  she  was  a  slave,  belonging  to  a  man 
in  Missouri,  whose  name  and  residence  she  gave,  and  that 
she  had  run,  or  been  assisted,  away,  and  was  on  her  way  to 
Canada  and  freedom,  and  that  Massa  Lovejoy  was  a  mighty 
good  man,  and  helping  her  along;  but  all  of  this  testimou}' 
I  of  course  ruled  out,  holding  that  it  was  only  hearsay 
evidence,  and  especially  that  of  a  person  Avhom  the  law 
would  not  credit  when  under  oath  (for  then  the  sworn 
testimony  of  a  negro  could  not  be  admitted  against  a  white 
man),  much  less  could  her  unsworn  statements  be  received. 
A  number  of  witnesses  were  ofl'ered  who  had  conversed 
with  Mr.  Lovejoy,  to  all  of  whom  he  had  stated  that  she 


126      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

was  a  woman,  needy  and  in  distress,  and  that  he  was  going 
to  help  her  to  where  she  could  help  herself. 

A  public  meeting  had  been  held  to  raise  funds  to  help  her 
along,  to  which  Mr.  Lovejoy  had  made  a  speech,  detailing 
her  sufferings  and  necessities,  and  at  which  others  had 
spoken,  detailing  her  account  of  her  slaver}'',  her  sufferings 
and  escape,  but  of  course  all  this  had  to  be  ruled  out  as  in- 
competent evidence  against  Mr.  Lovejoy ;  indeed,  not  one 
word  was  proved  from  beginning  to  end,  showing  that  Mr. 
Lovejoy  had  ever  admitted  or  intimated  that  the  woman 
was,  or  ever  had  been,  a  slave.  Evety  expression  proved  as 
coming  from  him  Avas  carefully  guarded,  so  as  not  in  any 
way  to  incriminate  him  as  connected  with  this  woman.  lie 
denounced  slavery  and  slaveholders  in  general  terms,  pic- 
tured the  sufferings  of  the  slave,  and  declared  in  livid  lan- 
guage that  it  was  the  duty  of  every  man  who  deserved 
happiness  in  this  world  and  beatitude  in  the  next,  to  con- 
secrete  the  means  which  God  had  given  him  to  the  escape 
of  slaves  from  their  cruel  bondage  to  a  place  of  freedom  ; 
but  for  this  Mr.  Lovejoy  was  not  indicted,  and  so  I  ruled  it 
out  as  incompetent,  although  it  was  impossible  to  keep  it 
out  in  the  first  instance,  for  counsel  had  a  right  to  prove 
what  he  said  in  his  speeches  to  find  if  something  criminat- 
ing could  not  be  found  in  them. 

Able  counsel  was  employed  to  assist  the  state's  attorney 
in  this  trial,  and  the  case  was  summed  up  most  elaborately, 
but,  no  doubt,  more  for  the  benefit  of  the  audience  than  for 
the  jury.  While  ])robably  no  j^erson  in  the  court  room  had 
the  least  doubt  that  Mr.  Lovejoy  well  knew  that  the  woman 
was  a  slave,  and  as  such  was  helping  her  escape  from  her 
master,  that  he  was  in  fact  president  of  the  underground 
railroad^  as  it  was  called,  by  which  slaves  were  assisted  to 
escape,  and  its  chief  manager,  there  lacked  the  legal  evi- 
dence that  this  woman  was  a  slave.  Mr.  Collins  argued  the 
case  with  his  usual  ability,  pointing  out  the  entire  insuffi- 
ciency of  the  evidence  to  justify  a  conviction. 

In  that  case  I  charged  the   jury  fully  upon  the  evidence 


CIRCUIT  SCENES.  127 

and  the  law,  admonishing  them  that  the  excitement  and 
prejudice  which  might  pervade  the  whole  community,  and 
the  moral  conviction,  if  they  entertained  such  conviction, 
of  the  defendant's  guilt,  should  have  not  the  least  influence 
upon  their  verdict,  if  they  did  not  find  legal  evidence  to 
justify  a  conviction;  that  a  storm  of  excitement  and  preju- 
dice might  be  raging  around  them,  but  they  must  stand  up 
against  it,  like  an  adamantine  rock,  against  which  the  waves 
of  the  sea  dash  without  making  the  least  impression;  that 
unless  there  was  legal  evidence  sufficient  to  show,  beyond  a 
reasonable  doubt,  that  this  woman  was  a  slave,  they  musl, 
acquit  the  defendant;  and  they  did  acquit  him,  greatly 
to  the  chagrin  of  the  anti-abolitionists,  and  as  greathT" 
to  the  joy  of  Mr.  Lovejoy  and  his  partisans.  The  rejoicing 
of  the  latter  was  undoubtedly  the  most  heartfelt  and  sincere, 
for  they  acted  from  a  deep  and  conscientious  conviction 
of  duty,  while  the  feelings  of  the  others  were  more  political 
than  moral. 

XIII. 

AXTI-SLAVERT  TIMES    IX  ILLINOIS. 

But  the  abolition  spirit  was  by  no  means  confined  to 
Bureau  county;  it  was  equally  earnest  and  zealous  in  por- 
tions of  Putnam  countv,  of  which  Bureau  had  formerly 
formed  a  part.  Laraoil  settlement  was  situated  about  six 
miles  from  Hennepin  on  the  edge  of  Grand  Prairie.  Within 
the  last  ten  3^ears  this  had  become  a  large  and  prosperous 
settlement,  with  its  schools  and  churches;  with  hardly  an 
exception  the  inhabitants  of  this  neighborhood  were  aboli- 
tionists of  a  very  pronounced  type. 

When  I  opened  a  term  of  the  court  at  Hennepin  the  grand 
jury  was  called,  and  when  the  name  of  one  of  the  citizens 
of  Lamoil  was  reached  he  stepped  forward  and  said :  "Judge, 
I  must  decline  to  be  sworn  on  this  grand  jury,  for  ray  con- 
science will  not  allow  me  to  swear  that  I  will  execute  all 


12S       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  laws  of  this  State.  I  know  that  my  refusal  to  do  this 
will  subject  me  to  fine  and  imprisonment,  but  these  I  shall 
cheerfully  submit  to  rather  than  violate  my  conscience." 

I  at  once  saw  that  I  had  a  martyr  to  deal  with,  who  was 
ambitious  to  suffer  for  conscience''  sake,  so  without  another 
word  I  told  him  to  take  his  seat  and  we  would  see  to  his 
case  later.  The  panel  was  completed,  the  jurors  sworn  and 
sent  out,  and  I  went  on  with  the  other  business  of  the  court 
without  any  further  reference  to  the  case  of  the  martyr. 
When  court  opened  the  next  morning  the  conscientious  juror 
"was  promptly  on  hand,  and  called  up  his  case  himself,  and 
inquired  of  me  what  punishment  I  proposed  to  inflict  upon 
him  for  refusing  to  be  sworn  on  the  grand  jury.  I  answered 
him  that  I  had  not  time  to  consider  his  case  yet,  and  should 
not  be  able  to  do  so  for  a  day  or  two,  and  told  him  that  I 
would  let  him  know  when  I  wanted  him.  He  took  his  seat 
with  evident  disappointment,  and  there  he  sat  all  clay  with 
a  steadfastness  which  was  now  becoming  interesting.  The 
next  morning  he  again  called  up  his  case  and  expressed  an 
anxiety  to  know  what  his  fate  was  to  be,  that  he  might  be 
suffering  the  punishment  and  have  it  over.  I  again  told  him 
that  I  had  not  time  to  consider  the  matter,  but  that  when  I 
wanted  him  I  would  manage  to  let  him  know.  He  indus- 
triously devoted  another  day  to  holding  down  a  wooden 
seat  in  the  court  room,  and  this  proceeding  was  repeated 
every  morning  in  the  week  until  Saturday,  when  he  again 
applied  for  sentence,  and  I  told  him  he  might  go  home,  that 
I  did  not  think  that  the  State  had  been  a  sufferer  to  an 
appreciable  amount  by  the  loss  of  his  services,  and  so  I 
should  not  inflict  any  punishment  at  all  u})on  him.  He  cer- 
tainly looked  more  mortified  and  chagrined  at  not  being 
punished  than  most  persons  do  when  they  are  punished. 

Mr.  Dickey's  father  was  a  Presbyterian  clergjnnan,  and 
was  in  charge  of  a  church  situated  at  Mount  Palatine,  and 
Avas  fully  in  sympathy  with  his  people  on  the  subject  of 
slavery.  One  day  during  the  term  Mr.  Dickey  drove  out  to 
visit  his  father,  and  in  the  course  of  conversation  his  father 


CIRCUIT  SCENES.  129 

expressed  bis  abhorrence  at  the  imprisonment  ^Ybic•b  bis 
neighbor  and  parishioner  was  suffering  in  the  jail  at  Henne- 
pin for  conscience'  sake,  and  expressed  the  opinion  that  such 
barbarities  in  a  Cliristian  community  woukl  do  more  to 
spread  the  lights  of  freedom  than  all  the  words  which  could 
be  uttered,  be  they  ever  so  eloquent.  The  old  gentleman 
seemed  much  astonished  and  chagrined  when  told  that  his 
good  neighbor  had  not  been  imprisoned  at  all  or  fined,  nor 
yet  had  received  a  word  of  reproof  from  the  court  for  refus- 
ing to  be  sworn,  but  had  all  the  week  hung  about  the  court, 
begging  daily  to  be  punished,  a  prayer  which  was  constantly 
refused  him.  The  reverend  gentleman's  disappointment  at 
this  termination  of  the  affair  was  evidently  not  a  whit  less 
than  was  that  of  the  intended  martyr  himself,  and  he  was 
even  loath  to  believe  that  what  his  son  told  him  was  true. 
He  said  that  it  was  reported  and  generally  believed  through- 
out the  community,  and  such  re])orts  had  been  sent  abroad, 
that  the  poor  man  had  been  hurried  off  to  jail,  and  was  there 
languishing  on  bread  and  water,  for  how^  long  a  period  no 
one  could  tell,  and  that  meetings  had  been  held  and  prayers 
had  been  offered  that  he  might  be  given  strength  and  forti- 
tude to  valiantly  suffer  for  righteousness'  sake. 

Mr.  Fridley  had  three  indictments  found  by  a  Peoria 
grand  jury  against  one  Bennett,  a  farmer,  who  lived  back 
in  the  country;  one  was  for  stealing  a  horse,  another  for 
stealing  a  wagon,  and  a  third  for  stealing  some  other  article 
Avhich  I  do  not  now  remember.  Powell,  Bryan  and  Knol- 
ton  were  engaged  to  defend  him,  and  as  he  had  a  very 
unsavory  reputation  in  Peoria  county,  they  applied  for  a 
change  of  venue,  and  by  agreement  the  case  was  trans- 
ferred to  Putnam  county,  which,  by  the  clipping  off  of 
Bureau  and  Marshall  counties,  had  so  reduced  its  size  and 
population  as  to  leave  sufficient  time  to  dispose  of  an  occa- 
sional case  from  other  counties  in  the  circuit. 

In  the  course  of  the  trial  Fridley  introduced  a  nephcAv  of 
the  defendant,  who,  upon  the  death  of  his  father  and  mother, 
had  gone  to  live  with  his  uncle,  who  from  the  very  first 
9 


130       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

had  initiated  him  into  tlie  profession  of  thieves,  and  the 
boy  had  become  so  expert  that  hy  his  hands  he  committed 
most  of  his  larcenies.  "With  great  particularity  and  candor, 
the  boy  detailed  with  minuteness  the  manner  in  which  his 
uncle  conducted  his  criminal  business,  and  the  manner  in 
which  he  had  conducted  the  boy's  education  in  the  same 
line. 

There  was  great  abundance  of  corroborating  as  well  as 
direct  evidence,  tending  to  support  the  charges  made 
against  Bennett. 

In  his  summing  up,  Fridley  drew  a  graphic  picture  of  the 
man  who  would  take  his  own  brother's  son,  who  was  left 
without  father  or  mother  or  friends  to  care  for  him,  and 
compel  him  to  turn  thief  under  his  own  diabolical  instruc- 
tions. 

After  summing  up  the  case  in  a  very  forcible,  not  to  say 
brilliant  manner,  Fridley  concluded  as  follows :  "  But, 
gentlemen,  what  do  I  do  ?  You  are  going  to  send  this  man 
to  the  penitentiary  for  ten  years  for  stealing  a  horse.  I 
shall  next  try  him  for  stealing  that  wagon,  and  he  will  go 
up  ten  years  for  that,  and  then  there  is  the  third  indictment 
against  him,  which  I  shall  next  try,  and  he  is  sure  of  ten 
years'for  that,  which  is  the  worst  case  of  all  of  them.  This 
makes  thirty  years  of  hard  work,  which  he  owes  to  the 
people  of  the  State  of  Illinois,  and  as  I  judge  he  is  now 
about  fort}^  years  of  age,  and  as  but  seventy  years  are 
allotted  to  man,  he  can  only  have  time  to  work  out  what 
he  owes  the  State,  so  that  every  minute  I  detain  you  here  I 
am  defrauding  the  people  of  this  State  out  of  the  services 
which  he  owes  them."  Neither  party  asked  any  instruc- 
tions, and  the  jury  was  sent  out  immediately. 

The  next  case  was  called  up  at  once,  and  Bennett's  coun- 
sel made  an  effort  to  have  it  continued  or  postponed,  but  as 
no  good  reason  could  be  shown,  I  overruled  the  motion,  and 
directed  a  jury  to  be  called.  Just  at  this  moment  the  first 
jury  came  in  with  a  verdict  of  guilty  and  ten  years  in  the 
penitentiary. 


CIRCUIT  SCENES.  131 

At  this  point  his  counsel  all  withdrew  from  the  case,  stat- 
ing that  thej  could  be  of  no  further  service  to  him,  where 
the  law  was  so  swiftly  administered.  I  then  asked  the 
prisoner  if  he  wished  to  employ  counsel.  He  answered  no, 
as  he  proposed  to  try  his  own  cases  thereafter.  He  did  so 
and  he  tried  his  case  fairly  well,  and  made  a  pretty  little 
speech  to  the  jury,  rather  pleading  for  mercy  than  denying 
his  guilt.  Fridley  did  not  press  him  hard,  and  the  jury 
brought  in  a  verdict  of  guilt}',  fixing  the  punishment  at  five 
years  in  the  penitentiary,  and  Bennett  manifested  a  satis- 
faction in  the  fact  that  he  had  been  more  successful  in  his 
own  defense  than  his  counsel  had  been  for  him  in  the  other 
trial. 

Now,  I  forget  whether  Fridle}"  tried  the  third  case  imme- 
diately thereafter  or  had  it  continued  and  stricken  from  the 
docket  with  leave  to  reinstate,  but  I  do  remember  that  in 
passing  the  sentence  I  directed  the  last  five  years  to  com- 
mence on  the  expiration  of  the  first  ten  years. 

When  it  is  remembered  that  I  had  twelve  counties  in  my 
circuit,  in  each  of  which  I  had  to  hold  two  courts  a  year, 
besides  my  Supreme  Court  duties,  and  that  three  of  these 
were  large  counties,  Peoria,  La  Salle  and  Kane,  requiring 
about  two  weeks  each  at  a  term,  and  that  I  was  determined 
to  clear  every  docket  at  each  term,  it  will  be  readily  appre- 
ciated that  quick  work  had  to  be  done,  and  no  time  unnec- 
essarily lost.  In  Peoria  county,  especially,  which  was  the 
largest  county  in  the  circuit,  we  had  to  be  very  industrious; 
there  I  usually  opened 'court  at  eight  o'clock  in  the  morn- 
ing, and  with  an  hour's  intermission,  held  on  until  dark, 
and  frequently  until  late  at  night.  I  recollect  at  one  time 
that  I  tried  seven  jury  cases  and  received  seven  verdicts  in 
one  forenoon.  Though  all  of  these  cases  were  contested, 
none  of  them  were  of  any  great  importance.  As  a  general 
rule,  questions  of  the  admissibility  of  evidence  were  not 
allowed  to  be  argued,  but  were  decided  as  soon  as  raised, 
and  so  of  all  motions  which  arose  during  the  trial. 

Probably  the  questions  which  arise  at  the  present  day  in 


132      EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

our  courts  of  justice  may  be  much  more  difficult  than  those 
which  were  then  presented,  but  then  I  never  could  afford 
the  time  to  hear  argument  in  support  of  a  position  about 
which  I  entertained  no  doubt  in  niy  own  mind,  nor  even 
against  it  for  any  great  length  of  time,  unless  I  thought 
counsel  were  talking  sense  or  to  the  purpose.  Let  it  be 
remembered,  again,  that  the  circuit  system  prevailed  at  that 
time,  which  compelled  everybody  to  think  quickly  and  to 
act  promptly. 

When  I  first  began  to  practice  in  Putnam  county,  as 
stated  in  one  of  the  earlier  numbers  of  this  series,  there 
was  already  a  pretty  large  settlement  in  the  Ox-bow  Prairie, 
of  members  of  the  Society  of  Friends,  with  many  of  whom 
I  soon  became  acquainted,  and  when  they  learned  that  I 
was  born  and  brought  up  in  that  denomination,  and  still 
had  a  o-reat  reverence  for  the  tenets  of  mv  father  and  mother, 
they  directly  claimed  me  as  one  of  their  own,  and  seemed  to 
feel  rather  proud  of  me,  and  treated  me  with  the  greatest 
kindness  and  affection,  and  sent  me  in  apples  and  other 
delicacies,  when  I  attended  court  in  that  county.  Now, 
fifty  years  ago,  the  men  of  this  denomination  held  it  to  be 
a  matter  of  conscience  to  wear  their  broad-brimmed  hats  on 
all  occasions,  whether  in  court,  in  church  or  in  the  drawing 
room,  and  it  was  not  deemed  improper,  if  one  could  endure 
the  discouifort,  to  wear  his  hat  at  the  table;  and  there  Avas 
manifestl}^  great  rejoicing  throughout  that  community,  when 
they  learned  that  I  was  appointed  to  preside  in  their  court, 
and  for  the  first  time  they  then  obeyed  summonses  to 
sit  upon  the  juries;  it  was  quite  interesting  to  see,  when  I 
first  opened  court  there,  what  a  considerable  proportion  of 
the  audience  consisted  of  my  brethren,  all  studiously  covered 
with  their  broad-brimmed  hats,  not  one  of  which  was  re- 
moved when  the  court  was  opened.  They  now  felt  at  full 
liberty  without  molestation  to  thus  bear  their  testimony 
against  the  vanities  and  ceremonies  of  the  world,  which  the}'" 
conscientiously  felt  they  were  doing  by  neglecting  to  uncover 
the  head  in  the  presence  of   any  mortal,  however  exalted 


CIRCUIT  SCENES.  133 

might  be  his  position.  In  this  they  were  following  the 
example  of  their  great  prototypes,  Barkley,  Fox  and  Fenn, 
Avho  refused  to  be  uncovered,  even  in  the  presence  of  the 
king. 

Of  course  I  allowed  them  to  indulge  in  this  peculiarity  to 
their  heart's  content;  even  to  the  extent  of  martyrdom, 
which  they  sometimes  seemed  to  suffer  in  very  hot  daj's  by 
wearing  their  hats  without  even  remo^'ing  them  to  wipe  off 
the  perspiration  from  their  sweltering  brows.  It  was  almost 
ludicrous  to  see  two  or  three  jurors  in  the  box  thus  covered, 
and  to  see  them  take  the  affirmation  which  they  did  in  place 
of  the  oath,  still  wearing  the  uncomfortable  broad-brimmed 
hat.  If  they  were  a  peculiar  people,  and  indulged  a  feeling 
of  pride  without  appreciating  it  by  thus  adhering  to  a  mere 
form,  the}"  were  still  a  conscientious  people  of  the  strictest 
integrity  in  all  their  transactions  with  their  fellow-men. 
They,  too,  were  abolitionists  of  the  strictest  kind,  and  jn'ided 
themselves  upon  the  fact  that  the  founders  of  their  religious 
denomination  more  than  two  hundred  years  ago  were  the 
first  among  Christian  peoples  to  bear  their  testimony  against 
human  slavery,  and  to  this  they  had  always  adhered  with  the 
tenacity  of  a  religious  tenet.  They  greatly  rejoiced  to  see 
others,  even  at  this  late  day,  rising  up  to  join  them  in  this 
great  work. 

If  they  were  an  obstinate  and  a  stiff-necked  people,  ready 
to  sacrifice  everything  for  their  beliefs  and  principles,  they 
were  equally  tenacious  in  maintaining  and  upholding  the 
highest  measure  of  personal  integrit}^. 

Temperance,  too,  was  made  a  part  of  their  religion,  which 
they  carried  further  than  the  most  pronounced  prohibition- 
ist would  be  required  to  practice  at  the  present  day.  It 
was  a  religious  offense  to  knowingly  sell  even  a  bushel  of 
corn  or  of  rye  to  be  distilled  into  whisk}^,  to  do  which  must 
be  followed  by  repentance  or  expulsion,  and  that,  too,  when 
for  the  want  of  transportation  there  were  scarcely  any  other 
markets  for  those  cereals  but  the  distilleries.  But  for  their 
tenacity  to  non-essentials,  such  as  in  dress,  in  language,  in 


134  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

forms,  and  in  amusements,  and  the  like,  I  believe  they 
would  be,  to-day,  the  most  numerous  Christian  denomination 
in  the  land.  IBut  for  their  tenacious  adherence  to  such 
utterly  unimportant  and  nonsensical  actions,  by  which  they 
repel  from  their  communion  their  own  rising  generation,  who 
refuse  to  submit  to  and  be  bound  by  their  unyielding  and 
unaccommodating  notions,  which  they  call  principles,  they 
Avould  have  continued  to  grow  and  prosper  and  gather  into 
their  fold  from  the  outside  world  large  reinforcements  at- 
tracted to  their  fellowship  by  the  excellence  of  what  maybe 
strictly  considered  their  religious  and  moral  teachings.  Fa- 
naticism may  assume  various  guises,  and  be  fanaticism  still, 
and  usually  expresses  the  most  sincere  beliefs  of  the  human 
heart. 

They  refused  to  limit  their  discipline  to  matters  of  relig- 
ion and  morals,  but  so  insisted  in  enforcing  a  yoke  upon 
the  necks  of  all  those  who  desired  to  walk  with  them  in 
matters  purely  religious  and  moral,  that  an  ever  increas- 
ing number,  of  their  younger  members  especially,  walked 
out  from  among  them,  till  now  they  are  so  diminished  in 
number  that  a  large  percentage  of  the  people  know  nothing 
of  them.  I  am  still  a  birth-right  member  of  that  denomi- 
nation of  Christians,  for  all  who  are  born  within  the  fold  are 
members  in  full  fellowship,  until  "  read  out "  for  some 
breach  of  discipline  unatoned  for  by  expressions  of  penitence 
or  regret,  and  since  ni}^  marriage  out  of  the  church,  for 
which  offense,  without  acknowledgment  of  contrition,  I 
should  have  been  lopped  off  as  a  branch  from  the  true  vine, 
I  was  never  Avithin  the  jurisdiction  of  a  meeting  authorized 
to  call  me  to  account,  and  as  they  could  not  act  without 
jurisdiction  of  the  person  and  giving  me  an  opportunity  to 
repent,  which  I  am  very  sure  I  never  should  have  done,  I 
am  still  a  member  in  full  standing,  and  nominally,  at  least, 
as  ffood  a  member  as  the  best  of  them. 

My  friends  in  the  Ox-bow  never  raised  any  question  or 
troubled  themselves  about  this  matter,  but  seemed  ever 
pleased  to  extend  to  me  their  gracious  regards,  and  the  neat 


CIRCmT  SCENES.  135 

and  plain  dress  of  both  men  and  women,  with  which  I  was 
so  familiar  in  the  days  of  my  boyhood,  reminded  me  so 
forcibly  of  that  maternal  love  which  was  ever  glowing  in 
my  memory,  that  they  always  looked  beautiful  to  me,  and 
they  still  awaken  memories  so  fond  that  I  trust  they  Avill 
ever  continue. 

XIV. 

TEIAL  OF  PHILLIPS  FOR  MURDER. 

In  the  fall  of  1842  one  Phillips,  a  farmer,  living  on  Indian 
Creek,  at  the  north  end  of  La  Salle  county,  had  a  difficulty 
with  his  neighbor  of  the  adjoining  farm  about  cattle  or 
fences  or  something  of  the  kind,  and  in  the  course  of  the 
controversy  Phillips  shot  and  killed  his  neighbor.  I  do  not 
remember  at  what  term  he  was  indicted  for  murder,  but  I 
am  quite  sure  that  the  trial  took  place  at  the  fall  term 
of  1843. 

During  the  session  of  1842-3  the  Legislature  passed  an 
act  increasing  the  punishment  of  manslaughter,  and  repeal- 
ing so  much  of  the  old  law  as  defined  the  punishment  for 
that  crime.  The  previous  punishment  for  that  offense  could 
not  exceed  three  years  in  the  penitentiary  and  a  fine  of  one 
thousand  dollars,  and  I  had  heard  it  said  that  at  the  same 
term  of  court  one  man  had  been  sent  to  the  penitentiary 
for  one  year  for  killing  another  man,  while  another  culprit 
had  been  sent  to  the  penitentiary  for  five  years  for  stealing 
a  horse.  But,  be  this  as  it  may,  the  Legislature  did  pass  a 
law  repealing  that  part  of  the  statute  which  had  fixed  the 
maximum  punishment  of  manslaughter  at  three  years  im- 
prisonment in  the  penitentiary,  and  inflicting  another  pun- 
ishment with  a  higher  maximum. 

As  both  Phillips  and  the  deceased  were  well-to-do  farmers, 
and  were  well  known  through  all  that  part  of  the  country, 
the  occurrence  created  much  excitement,  which  was  by  no 
means  confined  to  the  immediate  neighborhood. 


2  36       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

While  Phillips  Avas  not  -without  his  friends,  they  were, 
however,  largely  in  the  minorit3^ 

When  the  trial  came  off  the  large  concourse  of  citizens 
who  filled  the  town  testified  to  the  deep  interest  that  was 
felt  in  the  matter.  I  had  changed  circuits  with  Judge 
Young  for  a  part  of  the  spring  term,  and  while  he  was  sitting 
for  me  in  La  Salle  county  he  had  bailed  out  the  prisoner, 
Avhich  had  the  effect  of  increasing  the  clamor  against 
Phillips. 

Fridley  was  prosecuting  attorney  at  that  time.  Whether 
the  friends  of  the  deceased  had  employed  counsel  to  assist 
him  in  the  prosecution  I  do  not  remember,  but  my  impres- 
sion is  that  he  was  alone  in  the  prosecution.  Purple  and 
Dickey  were  employed  for  the  defense. 

A  jury  was  obtained  without  difficult}^,  mostly  from  the 
southern  part  of  the  county.  The  homicide  was  clearly 
])roved,  so  there  was  no  serious  question  on  that  point,  and 
the  defense  relied  upon  was  that  the  killing  was  accidental. 
At  least  two  witnesses  saAV  the  transaction.  The  evidence 
showed  Phillips'  cattle  were  in  the  field  of  the  deceased, 
who  was  pursuing  them  with  his  dog,  and  setting  him  onto 
the  cattle  with  great  vehemence.  When  the  defendant  saw 
this  he  seized  his  rifle  and  rushed  out  to  the  fence  which 
divided  the  two  fields  belonging  to  the  respective  parties, 
and  fired  the  fatal  shot. 

The  defense  insisted  that  the  shot  was  fired  at  the  dog,  and 
that  the  man  was  accidentally  hit.  There  was  considemble 
discrepancy  as  to  the  relative  positions  of  the  man  and  the 
dog,  so  there  were  plenty  of  grounds  for  one  party  to  insist 
that  the  man  might  have  been  hit  by  a  shot  intended  for  the 
dog,  while  the  other  insisted  that  they  were  so  far  apart 
that  the  shot  which  killed  the  man  must  have  been  intended 
for  him. 

Fridley  tried  the  case  upon  the  theory  that  it  was  mur- 
der, pure  and  simple,  while  Dickey  and  Purple  bent  all  their 
efforts  to  show  that  at  most  it  was  but  manslaughter,  and 


AN'THONV    THORNTON. 

Er-Juilye  of  the  Sx/irfnii'  Cuiii-I  <i(  niim 


CIRCUIT  SCENES.  137 

it  Tvas  manifest  that  this  was  the  best  verdict  they  could 
hope  to  secure. 

Of  course,  counsel  on  both  sides  were  well  aware  of  the 
l^assage  of  the  new  law  since  the  killing  took  place,  but 
neither  alluded  to  it  during  the  trial.  Fridley  evidently 
did  not  wish  to  concede  that  in  case  a  verdict  of  man- 
slaughter should  be  returned,  the  judgment  would  have  to 
be  arrested;  and  the  other  side  of  course,  would  not  inti- 
mate such  a  result  for  fear  it  might  force  the  jury  to  deter- 
mine that  the  homicide  was  murder  rather  than  to  allow 
the  prisoner  to  escape  without  punishment.  In  my  charge 
to  the  jury,  of  course  I  was  entirely  silent  as  to  that  sub- 
ject, for,  as  a  matter  of  law,  the  jury  had  to  determine 
whether  the  offense  was  murder  or  manslaughter,  without 
regard  to  the  consequences  which  might  follow  their  con- 
clusion, only  if  they  found  a  verdict  of  manslaughter,  they 
should  fix  the  term  of  punishment  in  the  penitentiary,  not 
to  excesd  the  period  of  three  years,  which  was  the  limit 
of  the  old  law.  The  jury  was  sent  out  in  the  course  of  the 
afternoon,  and  at  the  usual  time  for  adjournment  I  took  a 
recess,  informing  the  sheriff  that  I  would  come  in  and 
receive  the  verdict  should  it  be  agreed  upon  in  the  course  of 
the  evening.  I  was  notified  of  an  agreement  by  eight 
o'clock,  and  when  proceeding  to  the  court  house  a  great 
many  people  were  on  the  street  hurrying  up  to  hear  the 
verdict.  I  was  walking  with  Mr.  Dickey.  We  approached 
in  front  of  the  jury  room,  w^hich  was  on  the  second  floor, 
the  window  of  which  was  open,  and  we  distinctly  heard  a 
loud  i^eal  of  laughter,  in  which,  apparently,  several  of  the 
jurors  joined. 

Dickey  at  once  clapped  his  hands  in  joy  and  said  there 
^vas  no  hanging  in  that  laughter,  that  if  they  had  found 
his  client  guilty  of  murder  no  one  of  the  jury  would  feel 
like  laughing,  and  so  it  was.  A  verdict  of  manslaughter 
Avas  rendered  and  the  court  was  adjourned  for  the  day. 
The  next  morning  a  motion  was  made  in  arrest  of  judgment, 
which,  after  argument,  I  sustained  and  discharged  the  pris- 


138  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

oner,  holdino:  that  the  la^Y  which  fixed  the  measure  of 
punishment  for  manslaughter  at  the  time  this  crime  was 
committed  liad  been  repealed  absolutely  and  without  any 
saving  clause,  and  as  the  new  statute  could  not  have  a 
retroactive  effect,  there  was  no  law  now  in  existence  pro- 
viding for  the  punishment  of  manslaughter  committed 
before  the  repeal  of  the  old  law  and  the  enactment  of  the 
new. 

Well,  now,  this  decision  did  mal:e  a  clamor  of  great  vio- 
lence, to  say  the  least.  On  the  sidewalks  and  at  the  street 
corners  I  was  denounced  in  most  violent  terms  for  turning 
loose  a  murderer,  with  an  encouragement  to  him  to  go  and 
kill  somebody  else.  Public  meetings  were  held  and  raving 
speeches  were  made,  in  which  I  was  denounced  in  certainly 
as  bitter  terms  as  was  Phillips,  and  an  address  to  Gov.  Ford 
was  adopted  pointing  out  my  unfitness  for  the  place  to 
which  he  had  appointed  me,  and  inquiring  if  he  could  not 
devise  some  way  to  remove  me  from  the  oflice  which  I  so 
unworthily  occupied.  In  due  time  they  received  an  answer 
from  the  governor,  in  which,  I  was  informed,  he  pretty 
sharply  rebuked  them  for  their  unreasoning  clamor,  and  said 
that  they  might  congratulate  themselves  for  having  a  judge 
who  had  the  courage,  in  spite  of  threats  and  denunciations, 
to  declare  the  law  as  it  was ;  that  if  I  had  had  the  weakness 
to  yield  to  outside  pressure,  and  refuse  to  arrest  the  judg- 
ment, the  Supreme  Court  would,  without  a  moment's  hesi- 
tation, have  reversed  the  judgment  and  set  the  prisoner 
free.  After  this,  in  a  very  few  weeks  the  excitement 
quieted  down,  and  I  never,  so  far  as  I  know,  received  a  cen- 
sure for  the  course  I  took  since. 

He  who  would  creditably  fill  a  judicial  office  must  have 
the  couras'e  of  his  convictions,  and  act  upon  them  regard- 
less of  all  other  considerations.  He  must  be  deaf  and  blind 
to  all  outside  influences,  and  have  an  e_ye  single  only  to  duty. 
When  the  Constitution  of  1848  was  adopted,  making  the 
judiciary  elective,  I,  with  many  others,  feared  that  it  might 
have  a  tendency  to  impair  the  independence  of  a  judicial 


CIRCUIT  SCENES.  139 

office,  and  lower  it  to  the  level  of  the  politician,  and  induce 
at  least  weak  and  ambitious  aspirants  to  sometimes  warp 
their  decisions  in  compliance  with  the  demand  of  popular 
excitement,  as  if  they  feared  ''  an  appeal  from  the  decision 
of  the  judge  upon  the  bench  to  the  multitude  in  the  court 
house  yard;"  but  experience  has  shown  that  these  fears 
were  practically  groundless.  If  a  firm  and  fearless  dis- 
charge of  duty  has  sometimes  raised  a  popular  clamor  and 
denunciation,  with  us,  at  least,  this  is  but  short-lived.  Calm 
reflection  must  soon  take  the  place  of  excitement,  when  a 
reaction  will  set  in,  when  approbation  will  take  the  place 
of  denunciation,  and  re-establish  a  proper  equilibrium.  The 
public  appreciates,  scarcely  less  than  the  most  thoughtful 
and  conservative  individual,  the  absolute  necessity  of  a  firm, 
pure  and  courageous  judiciary.  While  it  may  tolerate 
weakness  and  vacillation,  and  even  peculation,  in  other 
public  positions,  it  can  never  be  so  with  the  judiciary. 
Trabonium  and  Bacon,  perhaps  two  of  the  greatest  legal 
lights  that  ever  illuminated  the  profession,  were  only  sus- 
pected of  being  influenced  by  improper  motives,  and  yet 
that  alone  proved  sufficient  to  throw  them  down  from  the 
exalted  positions  which  they  held  to  the  lowest  levels,  even 
in  public  estimation.  If,  in  our  own  times,  similar  sus- 
picions iiad  been  excited  against  a  judicial  officer,  the  same 
consequence  has  followed,  and  so  I  trust  it  will  ever  be. 
There  are  countries  where  it  is  said  that  the  judicial  office 
is  so  corrupted  that  judgments  can  be  bought  with  money, 
but  that  can  only  be  where  the  standard  of  morality  is  so 
low  that  the  common  people  have  come  to  believe  that  it  is 
a  necessary  accompaniment  of  official  life.  With  the  in- 
telligence and  enlightenment  of  our  country,  we  may  hope 
and  believe  that  such  can  never  be  the  case  here,  and  that 
the  standard  of  intelligence  and  integrity  required  of  all 
juiljlic  officers  will  be  elevated  to  that  measure  now  required 
for  those  who  administer  our  laws,  rather  than  that  they  will 
be  dragged  down  to  a  lower  level. 
At  the  time  of  the  trial  of  which  I  have  just  spoken,  I 


140      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

was  holding  my  commission  by  gubernatorial  appointment, 
which  must  expire  at  the  close  of  the  next  General  As- 
sembly, by  a  joint  vote  of  the  two  houses  of  which  the 
place  had  to  be  lilled,  and  it  would  have  been  more  than 
human  for  me  not  to  have  inquired,  in  my  own  mind,  what 
effect  so  unpopular  a  decision  as  I  was  obliged  to  make 
would  have  on  my  pending  election;  but  so  far  from  having 
a  weakening  influence  upon  my  determination  to  discharge 
my  duty  fearlessly,  and  to  administer  the  law  as  I  knew  it 
to  be,  it  fixed  me  in  that  determination  more  firmly  than 
ever,  if  possible,  and  I  afterward  had  the  satisfaction  of 
knowing  that  the  course  which  I  then  pursued  received 
the  approbation  and  cordial  support  of  those  who  then 
denounced  me.  Had  I  wavered  one  hair  then,  I  should 
have  deservedly  been  lost  forever. 

Right  on  this  point  I  may  refer  to  another  instance  in 
illustration.  When  going  to  open  the  first  term  of  the  fall 
circuit  in  1844,  in  Kendall  county,  I  found  the  roads  in  a 
most  horrible  condition,  showing  that  no  road  labor  had 
been  bestowed  upon  them.  That  was  the  Avettest  summer 
that  I  ever  knew  in  this  country.  All  the  slouglis  were 
full  of  water,  and  had  been  tramped  up  until  they  seemed 
to  have  no  bottom,  and  I  myself,  with  a  light  carriage  and 
two  horses,  got  stalled  in  a  slough  not  two  miles  from  the 
court  house,  and  had  to  pack  my  wife  and  children  out  to 
dry  ground,  and  then  to  hitch  the  horses  to  the  end  of  a 
pole,  and  draw  out  the  carriage.  If  to  be  covered  literally 
with  mud  constitutes  an  element  of  beauty,  then,  indeed, 
was  I  beautiful  for  once  in  my  life.  Well,  now,  I  was  out 
of  humor,  and  I  fear  I  continued  so  all  the  next  day,  which 
was  Sunday,  nor  did  I  feel  very  amiable  when  I  opened 
court  on  Monday.  I  was  fairly  saturated  with  the  idea 
that  a  county  with  such  roads  must  have  a  very  shiftless 
population,  and,  above  all,  must  have  a  very  shiftless  set  of 
roadmasters,  so  that  when  the  grand  jury  was  sworn  I  was 
fully  prepared  to  give  them  a  charge  on  the  subject,  and  I 
did  it  to  the  very  best  of  my  ability;  especially  I  pointed 


CIRCUIT  SCENES.  141 

out  to  tliom  that  the  immigrant  seeking  to  buy  a  farm,  and 
to  make  a  home  for  himself  and  his  family,  if  he  ever  got 
into  their  county,  would  only  seek  to  get  out  of  it  if  he 
possibly  could;  that  he  necessarily  would  make  up  his  mind 
that  they  were  all  a  shiftless,  trifling  set,  with  whom  he 
wished  to  have  no  fellowship;  that  when  he  passed  out  of 
their  county  he  would  shake  their  mud  from  off  his  feet  in 
disgust.  The  result  was  that  before  night  the  grand  jury 
brought  in  indictments  against  every  road-supervisor  in  the 
county,  and  before  I  adjourned  court  that  week  I  had  the 
satisfaction  of  fining  every  one  for  neglect  of  duty.  Indeed, 
all  came  in  and  pleaded  guilty  but  one.  Fridley  had 
seconded  my  efforts  with  the  greatest  zeal.  He  had  in- 
dicted this  man  on  a  bad  slough,  which  Avas  su])posed  to  be 
in  his  district,  but  upon  the  trial  it  was  found  that  this 
particular  slough  was  a  few  rods  over  the  county  line. 
Fridley  circulated  around  for  a  few  minutes,  and  soon 
found  witnesses  by  whom  he  proved  that  there  were  two  or 
three  other  bad  places  in  the  man's  district,  and  the  jury, 
after  a  few  minutes'  deliberation,  returned  a  verdict  of 
guilty,  and  I  fined  him  ten  dollars,  while  the  others  were 
all  let  off  with  five  each.  "When  the  cost  of  the  prosecu- 
tion and  of  his  counsel  fee  were  added  to  the  ton  dollars  he 
])robably  wished  he  had  pleaded  guilty  like  the  others. 

When  I  adjourned  that  court  and  went  on  my  Avay  to 
Geneva,  I  found  the  road  fairly  lined  Avith  men  repairing  it, 
not  only  in  Kendall  count\^,  but  in  Kane  also,  Avhich  Avas 
my  next  county.  This  convinced  both  Fridley  and  me  that 
the  fame  of  our  Avork  had  gone  before  us.  1  charged  all  the 
grand  juries  in  my  circuit  that  fall,  in  substantially  the 
same  way,  Avith  equally  good  results.  The  influence  of  that 
campaign  on  the  roads  of  that  circuit  AA^as  plainly  observ- 
able, so  long  as  I  held  the  courts  there  at  least. 

Some  of  my  friends  Avere  very  uneasy  that  I  Avould  make 
so  many  enemies  by  the  vigorous  prosecution  Avhich  Ave  in- 
stituted against  road  supervisors,  that  every  county  in  the 
circuit  Avould   send  members  to  the  approaching   Legisla- 


142  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

ture  who  would  vote  against  me;  but  the  result  proved  that 
my  action  met  with  general  approbation,  and  my  strength 
in  the  circuit  was  manifestly  much  increased  by  the  course 
which  I  had  pursued. 

I  had  got  thus  far  in  dictating  this  article,  when  I  received 
a  letter  from  Owen  G.  Lovejoy,  Esq.,  of  Princeton,  referring 
to  a  former  paper,  in  which  I  gave  an  account  of  the  trial 
of  his  father  for  assisting  a  runaway  slave  to  escape  from 
her  master.  Mr.  Lovejoy  says  :  "  I  have  just  finished  read- 
ing your  recollections  of  the  trial  of  my  father,  published  in 
the  last  issue  of  tJie  Legal  l^ews,  and  I  think  you  are  slightly 
mistaken  as  to  some  of  the  evidence  in  the  case.  Some  years 
ago  I  found  among  my  father's  papers  minutes  of  the  evi- 
dence in  that  case,  and  some  of  the  points  of  your  charge  to 
the  jury  in  my  father's  handwriting,  and  also  a  draft  of  an 
instruction  or  request  to  charge  in  Mr.  Collins'  handwriting. 
My  father  was  indicted  for  harboring  and  secreting  a  certain 
negro  woman,  called  Nancy,  she  then  being  a  slave  and 
owing  service  and  labor  to  some  person  to  the  jurors  un- 
known, residing  within  some  State,  Territory  or  district  to 
the  jurors  unknown,  by  feeding,  clothing  and  comforting 
tlie  said  Nancy. 

"  There  was,  as  you  state,  no  direct  evidence  that  Nancy 
was  a  slave,  and  the  prosecution  therefore  endeavored  to 
convict  by  proving  father's  declarations  that  she  was  a  slave. 
One  witness,  Isaac  Delano,  testified  that  father,  when  on  his 
way  to  Greenfield,  now  La  Moille,  in  Bureau  county,  and 
having  Nancy  in  the  vehicle  with  him,  stopped  at  his,  Dela- 
no's, house  at  Dover,  and  that  father  told  him,  Delano,  that 
Nancy  was  a  slave  who  had  escaped  from  her  master,  Delano 
also  testified  on  cross-examination,  that  father,  in  the  same 
conversation,  stated  that  her  master  was  passing  from  Ken- 
tucky to  Missouri  through  Illinois,  and  while  on  her  way 
Nancy  escaped. 

"  Mr.  Collins'  instruction  reads  that,  '  if  the  jury  believe 
from  the  evidence  that  Nancy  was,  before  the  time  charged 
in  the  indictment,  a  slave  in  Kentucky,  and  was  brought 


CIRCUIT  SCENES.  143 

from  thence  into  the  State  of  Illinois  b}-  her  master,  she 
thereby  became  free  and  was  not,  at  the  time  of  the  alleged 
harboring  and  secreting,  a  slave  as  charged  in  the  indict- 
ment.' 

"  The  following  are  the  points  of  your  charge : 

"  Opinion  of  judge. 

"  '  Principles  important  if  not  the  offense.  Forget  the 
opinions  of : 

"  '  1st.  Must  prove  she  was  a  slave,  and  belonged  to  some 
person  within  jurisdiction. 

"  '  2d.     Must  have  harbored  her. 

" '  3d.  Must  have  fraudulently  concealed  her,  for  this  is 
the  meaning  of  harbor. 

" '  4th.     All  confessions  must  be  received, 

" '  5th.  If  a  master  voluntarily  brings  a  slave  into  this 
State  the  slave  is  free. 

"  '  6th.     Must  show  that  slavery  exists  where  master  lives.' 

"  You  will  observe  that  while  the  prosecution  succeeded 
in  proving  that  father  had  stated  that  Nancy  was  a  slave, 
the  antidote  went  with  the  poison. 

"  In  these  days  when  it  is  proposed  to  have  the  negro 
dominate  the  white  man  in  some  portions  of  the  Union,  it 
must  seem  strange  indeed,  to  you,  when  you  recollect  that 
forty-five  years  ago  you  presided  in  a  court  where  a  white 
man  was  indicted  for  feeding  and  clothing  a  negress." 

As  Mr.  Lovejoy's  statements  taken  at  the  time  must  be 
received  as  certainly  correct,  so  far  as  they  go,  he  did  not 
pretend  to  state  all  of  the  evidence,  or  all  of  the  instructions. 
I  now  remember  that  one  witness  did  testify  to  statements 
having  been  made  by  Mr.  Lovejoy,  admitting  that  the 
woman  was  a  slave.  I  was  at  the  time  impressed  with  the 
belief  that  the  witness  must  have  been  mistalcen  as  to  the 
purport  of  j\[r.  Lovejoy's  admission,  and  this  belief  was  in- 
spired by  the  extreme  caution  and  ingenuity  shown  by  Mr. 
Lovejoy  in  all  his  other  conversations  and  speeches,  ]iroved 
by  a  great  multitude  of  other  witnesses,  in  which  he  care- 
fully avoided  any  such  admission. 


144  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

There  was  at  that  time  a  paper  published  in  Chicago, 
devoted  to  tlie  cause  of  the  abolitionists,  called  the  A\^estern 
Citizen,  published  by  a  Mr.  Eastman,  and  in  it  the  Lovejoy 
trial  was  reported,  how  fully  I  do  not  remember;  but  I 
do  remember  that  Mr.  Dickey  (late  Judge  Dickey  of  our 
Supreme  Court)  told  me  that  by  request  he  had  prepared  a 
synopsis  of  my  charge  to  the  jury  for  that  paper. 

No  doubt  there  is  some  one  living  who  has  the  files  of  that 
paper,  and  I,  at  least,  should  be  interested  to  know  what  its 
report  of  the  trial  was. 

I  had  often  discussed  the  question  in  the  conference  room, 
if  not  elsewhere,  in  which  I  ever  maintained  that  if  a  man 
voluntarily  brought  his  slave  into  Illinois,  the  slave  by  that 
act  became  free,  and  when  I  saw  it  lately  stated  in  a  daily 
paper  that  I  had  so  instructed  the  jury  in  the  Lovejoy  case, 
I  concluded  that  the  author  of  the  statement  must  have 
made  it  from  my  known  opinions  on  the  subject,  as  I  have 
no  recollection  that  I  ever  had  the  occasion  to  express  my 
views  on  the  subject  officially,  nor  do  I  now  remember  it; 
but  Mr.  Lovejoy's  statement  on  the  subject  must  be  received 
as  conclusive.  As  the  roads  througli  Illinois  from  some 
portions  of  Kentucky  to  Missouri  were  much  shorter  than 
any  other  in  the  earlier  years  of  the  State  government, 
many  slaves  were  thus  transported  across  the  State  ^^nthout 
question,  and  authorities  Avere  not  wanting  to  show  that  by 
such  transit  the  slaves  were  not  manumitted,  and  able  judges 
in  this  State  adhered  to  that  opinion  at  the  time  of  wTiich  I 
am  speaking. 

As  the  lesson  designed  to  be  taught  by  this  paper  is  that 
the  judicial  officer  should  ever  exercise  his  functions  in  total 
disregard  of  popular  clamor,  but  to  stand  up  manfully  and 
heroically,  and  administer  the  law  as  he  has  sworn  to  do  it 
without  regard  to  the  effect  Avhich  it  may  have  upon  his 
own  popularity,  it  seemed  to  me  that  another  reference  to 
the  Lovejo}'-  trial  was  appropriate. 


CIRCUIT  SCENES.  145 

XV. 

TRIALS. 

During  Fridley's  administration  as  state's  attorney,  an 
indictment  was  returned  in  the  Circuit  Court  of  La  Salle 
County  against  a  man  for  stealing  a  calf.  Mr.  Glover  was 
employed  for  the  defense,  and  very  soon  after  the  jury  was 
impaneled  I  observed  that  something  was  the  matter  with 
Fridley.  Something  had  evidently  occurred  to  provoke 
him,  for  he  very  plainly  manifested  a  disposition  to  con- 
vict the  man,  right  or  wrong.  He  had  not  proceeded  far 
with  his  evidence  before  I  was  satisfied  that  it  Avas  only 
a  case  of  mistaken  identity  at  the  most.  A  number  of  wit- 
nesses were  called  on  each  side,  each  testifying  with  con- 
fidence in  favor  of  the  party  w^hich  called  him.  As  the  case 
progressed,  Fridley's  determination  to  convict  this  man 
became  more  and  more  manifest,  especially  when  the 
defendant's  evidence  tended  to  show  his  innocence  or  that 
he  had  taken  the  calf  really  believing  it  to  be  his  own,  and 
when  I  became  entirely  convinced  that  there  was  no  feloni- 
ous intent  in  the  case  I  turned  in  to  help  Glover  just  as  far 
as  I  could  with  any  degree  of  propriety,  but  this  only  stimu- 
lated Fridley  to  redoubled  exertions  to  secure  a  conviction. 
Glover  and  I  did  the  best  we  could  for  the  defendant,  and 
although  I  had  the  last  speech  to  the  jury  in  the  form  of  a 
charge,  Fridley  beat  us  both,  for  the  jury  returned  a  ver- 
dict of  guilty  in  spite  of  us.  When  the  motion  was  made 
for  a  new  trial,  Fridley  of  course  declined  to  argue  to  it, 
for  he  had  accomplished  his  object  in  securing  a  verdict,  and 
this  was  all  he  wanted,  and  for  this  he  was  especially  anxious 
when  he  saw  that  I  was  inclined  to  help  the  defense  and 
secure  an  acquittal. 

I  can  not  now  remember  any  of  the  ingenious  turns  and 
telling  expressions  by  which  he  managed  to  get  the  jury  so 
firmly  enlisted  on  his  side  as  to  beat   us  both.     I   only 

10 


146      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

remember  that  they  were  ingenious  and  telling,  and  were 
successful  with  that  jury,  and  even  on  his  impassible  coun- 
tenance there  was  an  expression  of  satisfaction  which 
showed  how  much  he  enjoyed  his  triumph. 

Most  lawyers  who  have  practiced  in  the  country  will 
remember  that  it  has  frequently  occurred  that  controversies 
about  the  identity  of  domestic  animals  have  been  maintained 
on  both  sides,  at  first  with  confidence,  and  then  with  bitter- 
ness, and  that  many  witnesses  will  be  brought  who  testify 
to  the  identity  of  an  animal  with  the  same  confidence  that 
they  would  to  the  identity  of  their  own  children,  but 
directly  opposite  to  each  other.  Such  a  case  was  once  tried 
before  me  either  in  Kane  or  Kendall  county  (I  do  not 
remember  which),  in  which  the  identity  of  a  calf  was 
involved.  The  usual  number  of  witnesses  testified  on  each 
side,  and  with  equal  confidence,  until  it  was  impossible  to 
form  any  satisfactory  conclusion  as  to  which  was  right, 
when  finally  the  owner  of  the  cow  and  of  the  calf  intro- 
duced them  both  to  maintain  his  claim  to  the  latter.  He 
showed  that  when  he  brought  the  calf  home  and  turned  it 
in  with  the  cow,  it  at  once  rushed  up  to  her  and  commenced 
sucking,  which  she  not  only  suffered  it  to  do,  but  caressed 
and  licked  it  in  the  meantime,  as  if  greatly  satisfied  to  see 
it  again. 

Now  I  thought  we  had  something  tangible,  upon  which 
some  reliance  might  be  placed,  but  the  other  party  brought 
up  witnesses,  and  several  of  them,  who  testified  that  that 
particular  cow  would  allow  any  calf  to  suck  her,  and  always 
manifested  an  equally  maternal  affection  for  every  calf  she 
met,  and  licked  and  fondled  all  with  great  impartiality,  and 
that  that  calf  had  been  suffered  to  suck  several  different 
cows  and  would  claim  that  privilege  of  any  cow  that  it  met. 
All  of  these  witnesses  testified  with  equal  confidence,  and  it 
was  manifest  with  equal  integrity  and  sincerity. 

Which  way  that  jury  guessed  in  making  up  their  verdict 
I  do  not  remember,  but  of  course  whichever  way  it  was  that 
verdict  had  to  stand. 


T.  LYLE    DICKEY 


CIRCUIT  SCENES,  147 

]Mr.  Dickey  was  eng-aged  on  one  side  of  that  case  and 
probably  no  person  who  was  familiar  with  him  forty  years 
ago  has  failed  to  hear  him  relate  the  case  of  the  bovine  wit- 
nesses, which  he  was  very  fond  of  telling,  and  he  did  it 
with  many  amusing  incidents  which  I  do  not  now  remember. 

At  a  term  of  the  Circuit  Court  which  I  held  in  Kendall 
county,  one  Rider  was  indicted  for  murder  and  Mr.  Dickey 
conducted  the  dsfense.  In  impaneling  the  jury  I  was  struck 
Avith  the  fact  that  he  accepted  several  who  stated  that  they 
had  formed  an  express  opinion  that  his  client  was  guilty, 
and  he  afterward  explained  to  me  that  he  did  so  because  of 
his  knowledge  of  their  high  integrity,  intelligence  and 
firmness,  from  which  he  felt  sure  that  they  Avould  clearly 
understand  the  facts  which  would  be  testified  to  by  the 
witnesses,  and  the  law  as  it  should  be  laid  down  by  the 
court,  and  would  give  him  the  fair  benefit  of  it  in  making 
up  their  verdict,  and  that  they  would  have  a  controlling 
influence  with  the  other  jurors.  Upon  the  trial  it  was' 
shown  that  the  prisoner  lived  in  a  log  house  about  half  a 
mile  from  the  town  of  Georgetown,  now  Newark,  in'  that 
county;  that  he  was  much  addicted  to  intemperance,  and 
Avhen  under  the  influence  of  liquor  was  quarrelsome  and 
considered  dangerous;  that  one  morning  he  went  to  George- 
town with  his  rifle  in  his  hand,  and  commenced  drinking, 
and  became  so  much  intoxicated  that  he  commenced  to 
quarrel  with  several  persons,  one  of  whom  he  shot,  as  it 
was  supposed,  in  a  vital  place,  and  the  physician  who  was 
called  declared  that  he  could  live  but  a  few  hours  at  the 
most;  yet  contrary  to  all  expectations  he  did  recover.  So 
soon  as  he  had  done  the  shooting  he  started  for  his  cabin, 
into  which  he  entered  with  his  son,  who  was  but  a  boy, 
and  securely  barred  the  door. 

In  a  short  time  he  was  followed  by  a  large  posse,  consist- 
ing of  most  of  the  citizens  of  the  town,  who  loudly  demanded 
that  he  should  surrender  himself  upon  the  charge  of  murder. 
This  he  refused  to  do.  They  surrounded  the  house,  and 
parleyed  with  him  a  considerable  time.     They  had  no  war- 


148      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

rant  for  his  arrest,  and  I  do  not  remember  that  there  was  a 
constable  or  magistrate  in  the  party.  When  he  refused  to 
surrender,  and  gave  them  notice  tliat  he  would  defend  him- 
self to  the  last,  the  crowd  made  attempts  to  break  into  the 
house.  Some  got  onto  the  roof,  while  others  got  a  heavy 
stick  of  timber  and  proceeded  to  batter  down  the  door, 
whereupon  he  fired  his  rifle,  and  killed  one  of  the  battering 
party.  Many  witnesses  were  sworn,  and  as  is  always  the 
case  in  describing  an  exciting  transaction,  considerable  dis- 
crepancy was  observed,  especially  as  to  the  details,  but  the 
unquestioned  fact  remained  that  the  man  was  in  his  own 
house  with  his  young  son;  that  the  door  was  barred;  that 
it  was  battered  down  with  a  stick  of  timber,  and  that  a  man 
who  was  actively  engaged  in  that  work  was  shot  and  killetl 
by  the  prisoner  while  so  engaged. 

An  incident  occurred  during  that  trial  which  illustrates 
the  frailty  of  human  observation  and  of  human  memory. 
One  Havenhill,  a  most  respectable  farmer,  and  who  lived  in 
the  neighborhood,  was  of  the  party  in  pursuit  of  the  pris- 
oner, who  described  the  incidents  of  the  affair  with  great 
particularity  and  manifest  candor.  He  testifed  that  there 
was  a  window  on  the  side  of  the  house  near  the  door,  and 
that  through  that  window  he  saw  the  prisoner  and  his  son, 
and  described  their  actions  and  doings  before  the  assault  was 
made  upon  the  door.  The  acts  thus  described  were  supposed 
to  be  damaging  to  the  defense.  On  this  ])oint  he  was  very 
positive  and  very  persistent,  and  the  most  rigid  cross-exami- 
nation only  served  to  show  that  he  could  not  possibly  be 
mistaken  that  there  was  a  window  on  that  side  of  the  house 
near  the  door,  through  which  he  saw  the  prisoner  and  his 
son  do  the  acts  which  he  described,  and  he  stated  many  in- 
cidental facts  which  showed  that  on  this  point  he  could  not 
be  mistaken. 

The  next  morning,  just  as  I  opened  court,  he  rushed  into 
the  room  in  manifest  excitement,  and  said  that  he  wished  to 
make  an  explanation  to  the  court  and  jury  before  the  case 
proceeded  any  further,  which  I  permitted  him  to  do. 


CIRCUIT  SCENES.  149 

He  said  that  the  evening  before  he  had  had  an  interview 
with  Mr.  Dickey,  in  which  the  latter  stated  to  him  that  he 
was  certainly  mistaken  about  there  being  a  Avindow  on  that 
side  of  the  cabin;  that  he  himself  had  lately  examined  the 
premises,  and  certainly  knew  that  such  was  the  case,  and 
begg-ed  of  him  to  go  and  see  for  himself;  that  he  would 
afterward  find  out  that  he  was  mistaken  in  his  statements, 
when  it  would  be  too  late  to  regret  that  he  had  testified 
falsely  against  the  life  of  a  fellow-being;  that  under  these 
urgent  persuasions  of  Mr.  Dickey,  he  had  got  up  early  in 
the  morning  and  rode  down  to  the  place,  which  was  ten  or 
twelve  miles  off,  when,  to  his  utt«r  astonishment,  he  found 
that  he  had  been  mistaken,  and  that  there  was  no  window 
on  that  side  of  the  house,  although  he  had  felt  so  positive 
on  the  point  that  if  his  own  life  had  depended  upon  it 
he  would  not  have  made  the  journey  to  verify  his  recollec- 
tion or  observation  without  the  persistent  urging  of  Mr. 
Dickey. 

This  is  another  illustration  of  the  unreliability  of  human 
memory,  on  which  so  much  of  our  rights  of  property,  or  even 
life,  depend.  I  know  in  my  own  case  many  instances  have 
occurred,  in  which,  it  now  seems  to  me,  that  I  could  not 
have  been  mistaken,  and  yet  the  proof  is  absolutely  convinc- 
ing that  I  was  mistaken,  and  I  have  no  doubt  that  many 
others  can  recall  similar  circumstances.  I  have  a  case  in 
mind  now,  where  it  seems  to  me  that  I  read  in  Lewis  & 
Clarke's  Expedition,  by  Paul  Allen,  an  account  of  a  trans- 
action which  occurred  during  the  winter  of  1804-5,  while 
they  resided  at  their  fort  near  the  Mandan  Indians,  with 
which  York,  the  colored  servant  of  Capt.  Clark,  and  an 
Indian  Chief,  were  connected.  I  was  within  the  last  few 
months  describing  this  transaction  to  a  friend, who  seemed 
much  interested  in  it,  and  thinking  it  would  be  more  interest- 
ing to  him  to  read  it  in  the  author's  own  Avords,  so  soon  as 
I  found  leisure  I  took  down  the  book,  believing  that  I 
could  find  the  passage  in  a  few  minutes,  which,  however,  I 
failed  to  do.      I  then  read  the  account  which  they  gave  of 


150       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

their  residence  at  that  place,  occupying  seventy-five  pages  of 
the  book,  without  finding  a  description  of  the  incident, 
Avhich  I  so  clearly  remember.  So  certain  was  I  that  it  was 
there,  that  I  read  it  over  carefully  three  times,  but  without 
finding  it.  Then,  thinking  it  might  be  in  some  other  part  of 
the  book,  I  read  the  whole  two  volumes  through,  and  can 
find  no  allusion  to  the  incident  anj'where.  I  can't  account 
for  it.  It  seems  to  me  that  I  can  now  see  the  page.  The 
incident  is  of  such  a  character  that  I  can  not  imagine  I  saw 
it  anywhere  else.  Did  I  dream  it?  It  seems  as  clearly 
impressed  u})on  my  mind  as  any  events  of  my  past  life. 

I  have  since  mentioned  the  incident,  Avhich  I  thus  clearly 
recollected,  to  at  least  two  gentlemen,  who  I  know  were 
familiar  with  the  work  referred  to,  and  were  learned  in  that 
class  of  literature  to  which  it  related,  and  they  both  recol- 
lected the  incident  as  I  recollected  it,  and  thought  that  it 
was  in  the  same  book  to  which  I  refer,  and  one  of  them, 
Mr.  E.  E.  Ayer,  of  Chicago,  who  has  the  finest  library  ever 
collected  upon  the  North  American  Indians,  assured  me  that 
he  would  soon  give  me  a  reference  to  the  passage;  but  many 
months  later  he  informed  me  that  he  had  not  only  carefully 
examined  the  work  referred  to,  but  all  other  works  in  his 
library  in  which  he  thought  it  possible  the  passage  could  be 
found,  without  the  least  success.  Still  his  recollection  is  as 
clear  as  mine  that  he  has  read  it  somewhere,  and  it  still 
seems  to  him  as  if  he  found  it  in  Lewis  &  Clarke's  Journal, 
in  their  account  of  their  residence  among  the  Mandan 
Indians  during  the  winter  of  1804-5,  but  it  is  not  there; 
nor  can  I  find  it  anywhere  else;  yet  it  seems  to  me,  as  before 
stated,  that  I  can  see  the  very  part  of  the  page  on  which  it 
occurred;  and  my  friend's  recollection  seems  equally  clear 
and  is  equally  at  fault. 

Alas,  for  human  memory !  It  is  too  frail  to  be  certainly 
relied  upon,  and  yet  we  must  often  depend  upon  it  to  assert 
rights  or  to  defend  against  wrong.  My  experience  convinces 
me  that  my  observations  are  as  good  and  my  memory  as 


CIRCUIT  SCENES.  151 

reliable  as  those  of  most  men,  and  yet  I  know  that  it  can 
not  be  relied  upon  at  all  times. 

The  man  whom  Rider  had  shot  in  the  town,  and  who,  it 
was  universally  sup])osed,  could  live  but  a  few  hours,  did 
finally  recover,  and  was  now  as  well  as  ever. 

Mr.  Dickey  in  his  argument  to  the  jury  placed  his  defense 
entirely  upon  the  statute  defining  justifiable  homicide,  con- 
tained in  Section  32  of  the  Criminal  Code  as  found  on  the 
176th  page  of  Field's  Revised  Statutes  of  1833,  and  is  now 
contained  in  the  Revised  Statutes  of  1871,  Chap.  38  and  Sec- 
tion lis,  which  also  embraces  Section  33  in  the  revision  of 
1833.  The  part  upon  which  he  relied  especially  is  contained 
in  these  words :  "  Justifiable  homicide  is  the  killing  of  a 
human  being  in  necessary  self-defense  of  habitation,  property 
or  person,  who  manifestly  intends  or  endeavors  by  violence 
or  surprise  to  commit  a  known  felony,  *  *  *  or  against 
any  person  or  persons  who  manifestly  intend  and  endeavor 
in  a  violent,  riotous,  or  tumultuous  manner  to  enter  the 
liabitation  of  another  for  the  purpose  of  assaulting  or  offer- 
ing personal  violence  to  any  person  dwelling  therein."  He 
expatiated  extensively  upon  this  section  of  the  statute,  and 
showed  how  exactly  it  covered  Rider's  case ;  how  he  was 
assailed  in  his  own  dAvelling  house  by  a  mob,  who  had  no 
authority  of  law  to  arrest  him  had  they  met  him  in  the  streets, 
much  less  so  when  in  his  own  dwelling  house  with  barred 
doors,  and  warned  to  keep  away  or  take  the  consequences. 
]S'o  matter  what  justification  they  might  have  had  for  their 
conduct,  had  Rider  actually  been  guilty  of  murder,  and  they 
no  doubt  believed  he  had,  yet  the  result  showed  that  he  had 
not  been  guilty  of  that  crime.  He  then  explained  to  the 
jury  why  he  had  accepted  so  many  of  them  who  had  ex- 
pressed opinions  that  the  prisoner  was  guilty  of  murder,  and 
he  declared  his  undoubting  belief  that  the  result  would 
vindicate  his  confidence  in  their  integrity,  intelligence  and 
firmness  of  character,  which  would  enable  them  to  dismiss 
from  their  minds  previous  opinions,  and  give  the  prisoner 
the  benefit  of  the  law  as  they  now  found  it  to  be  and  as 


152       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

they  would  receive  it  from  the  court.  In  my  charge  to  the 
jury  I  succinctly  reviewed  the  evidence,  and  told  them  that 
the  statute  relied  upon  by  the  defense  was  applicable  to  the 
case,  and  told  them  it  was  their  duty  to  administer  the  law 
as  it  existed,  and  told  them  that  the  prisoner  was  on  trial 
for  the  murder  of  the  deceased  and  not  for  shootino-  the  man 

o 

that  had  recovered. 

The  result  sho'Nved  that  Dickey  had  not  been  mistaken  in 
the  estimate  which  he  had  formed  of  the  character  of  the 
jurors  which  he  had  accepted,  for  after  due  deliberation 
they  brought  in  a  verdict  of  not  guilty  and  the  prisoner  was 
discharged. 

I  do  not  remember  that  he  was  ever  prosecuted  for  assault 
with  intent  to  kill,  for  which  he  would  probably  have  been 
convicted,  and  I  think  I  heard  that  soon  after  the  trial  he 
left  the  country. 

There  was  no  excitement  or  even  complaint,  so  far  as  I 
ever  heard,  that  Rider  was  acquitted ;  all  seemed  to  recognize 
that,  technically  at  least,  the  law  was  on  his  side,  and  seemed 
willing  to  give  him  the  benefit  of  it. 


CHARLES    B.    LAWRENCE. 

El-Judge  of  the  Supreme  Conn  of  lUinois. 


YIII. 

THE  CONFERENCE  ROOM. 
I. 

THE    DIFFICULTY  OF  EAKLY  TRAVEL LUCK   FOK    PLACE TRIP   TO 

MOUNT    VERNON. 

As  preliminary,  or  an  introduction  to  the  first  paper  which 
I  propose  to  write  under  the  title  of  "  The  Conference  Eoom," 
in  which  I  sliall  occasionally  take  my  readers  behind  the 
screen  which  conceals  the  most  confidential  and  secret 
proceedings  of  a  court  consisting  of  more  than  one  judge,  I 
will  devote  a  short  space  to  the  difficulties  of  travel  which 
the  judges  of  the  courts  had  to  undergo,  in  reaching  the 
places  where  they  had  to  perform  their  official  duties.  The 
first  term  of  the  court  held  by  the  three  judges  under  the 
Constitution  of  1848,  was  fixed  in  December  of  that  year  to 
be  held  at.  Mount  Yernon,  in  Jefferson  county.  There  were 
no  railroads  then  to  help  us  on  the  way,  and  Mount  Yernon, 
as  things  then  existed,  would  now  be  considered  in  a  remote 
and  secluded  part  of  the  country.  I  went  from  Ottawa  in 
a  double  buggy,  with  my  wife  and  child,  and  drove  through 
the  country  to  Springfield,  which  occupied  four  days.  On 
the  way  I  stopped  at  Washington,  in  Tazewell  county,  and 
held  my  last  Circuit  Court  at  a  special  term  which  had  been 
appointed  by  Judge  Treat  to  try  a  criminal  case,  which  I 
had  sent  over  by  change  of  venue  from  Peoria  county.  At 
Springfield  I  left  my  wife  and  child  at  quarters  which  I  had 
secured  for  them,  and  took  in  Judge  Treat,  whom  I  had 
invited  to  ride  with  me  on  to  Mount  Yernon. 

(153) 


154       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

"We  started  from  Springfield  on  a  darlc,  cloudy  morning, 
and  before  we  had  proceeded  half  a  mile  a  heavy  snow 
storm  set  in,  which  proved  to  be  the  most  severe  that  had 
been  known  there  for  many  years.  I  drove  a  good  team, 
and  we  pressed  forward  through  the  blinding  storm  with- 
out stopping  until  we  reached  Macoupin  Point,  twenty- 
eight  or  thirty  miles,  by  which  time  the  snow  was  about 
ten  inches  deep,  when  we  were  glad  to  take  shelter,  though 
the  weather  was  not  cold.  The  next  day  we  pushed  on 
toward  Greenville,  in  Bond  county,  which  we  reached  the 
second  night  after,  and  the  next  day  we  reached  Carlyle,  in 
Clinton  county.  Here  one  of  my  horses  was  taken  ill, 
when  I  left  him  and  procured  another  in  his  place.  The 
snow  was  still  deep  and  the  roads  very  heavy.  Indeed,  for 
more  than  three  quarters  of  the  way  since  we  left  Spring- 
field, not  a  single  track  was  seen  from  the  road. 

The  unusual  fall  of  snow  seemed  to  shut  everybody  up, 
and  we  passed  many  log  cabins  in  the  timber  which  bordered 
the  prairies,  and  in  the  forest  through  which  the  road 
passed,  where  we  could  see  families  shivering  around  large 
fires  in  their  cabins,  with  both  doors  and  windows  wide 
open,  and  pigs  squealing  around  on  the  outside  as  if  they, 
too,  would  be  glad  to  get  near  that  fire. 

Indeed,  the  people  there  hardly  seemed  to  know  what 
snow  meant  or  how  to  protect  themselves  from  the  cold, 
and  this  caused  constant  remark  between  us. 

We  had  expected  when  we  left  Springfield  to  reach  Mt. 
Yernon  on  Saturday,  but  here  Ave  were  only  at  CarMe  on 
Saturday  night  vrith  a  sick  horse  and  a  still  unbroken 
road  before  us.  We  got  our  new  horse  and  made  an  early 
start  Sunday  morning  and  pushed  forward  at  the  best 
speed  we  could;  but  a  considerable  coat  of  snow  was  still  on 
the  ground  and  it  was  already  getting  dusk  when  we 
reached,  in  the  edge  of  the  timber,  the  brick  farm  house 
of  a  well-to-do  farmer,  who,  Ave  learned  at  Carlyle,  was  in 
the  habit  of  entertaining  travelers,  and  where  Ave  could  get 
excellent  quarters  unless  the  good  lady  of  the  house  should 


THE  CONFERENCE  ROO:.I.  155 

happen  to  be  out  of  humor,  and  then  we  would  have  to  stav" 
out  all  night,  if  necessary,  in  a  storm,  before  she  would  let 
us  into  the  house.  For  many  years  I  remembered  the 
name  of  this  farmer  and  the  distance  from  Carlyle  to  his 
house  and  from  there  to  Mt.  Yernon,  but  I  can  not  state 
them  now  with  certainty.  I  am  A^ery  confident  Ave  Avere 
still  from  fourteen  to  eighteen  miles  from  the  latter  place. 
It  was  raining  hard  and  a  cold  wind  Avas  blowing,  and  it 
was  getting  dark  when  we  droA'e  up  to  the  fence  in  front 
of  the  house,  where  the  landlord  came  out  and  met  us, 
who,  upon  our  application  for  entertainment,  Avith  evident 
embarrassment,  frankly  told  us  that  his  Avife  Avas  in  a  tan- 
trum and  that  he  could  not  afford  us  shelter.  He  told  us 
that  the  nearest  house  was  about  two  miles  ahead,  Avhere 
lived  a  widoAv  in  a  log  cabin,  and  that  this  was  our  only 
chance  for  that  night. 

Neither  of  us  had  ever  been  there  before,  but  entreaty 
AA^as  of  no  aA^ail;  Ave  started  on.  Even  the  snoAv,  AA'hich  would 
haA^e  afforded  some  light,  had  disappeared  in  the  course  of 
the  afternoon.  We  found  the  road  to  be  narroAV  and  wind- 
ing, deeply  gullied,  up  and  doAvn  steep  hills,  and  across 
creeks  now  swollen  with  the  rain,  over  some  of  Avhich  Avere 
narrow,  corduroy  bridges,  and  through  others  Ave  had  to  ford. 
We  had  not  gone  halt  a  mile  before  pitch  darkness  set  in, 
so  Ave  could  not  see  a  vestige  of  the  road,  or  even  the  forest 
trees  Avhich  border  it  on  either  side.  Tlien  one  of  us  had  to 
get  out  and  Avade  through  the  mud  in  front  of  the  horses, 
and  Avith  our  feet  feel  where  the  road  was  and  see  if  there 
Avere  gullies  on  either  side,  and  so  we  plodded  on  for  more 
than  three  hours,  copious  rain  falling  all  the  time,  and  the 
cold  wind  increasing  in  violence.  AYe  had  to  look  sharp  all 
the  latter  part  of  the  way,  lest  Ave  should  pass  the  AvidoAv's 
cabin  without  observing  it.  At  last  we  did  find  it  along- 
toward  midnight  and  succeeded  in  arousing  the  Avidow  and 
her  little  family  of  children,  and  the  brave  Avoman,  as  she 
was,  admitted  us  Avithout  knoAving  whether  Ave  were  tramps 
or  honest  men.     Treat  Avent  in  and  helped  to  get  up  a  good 


156  .EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

lire,  ^Yllile  I  unhitched  the  horses  and  took  them  to  a  shed 
across  the  road,  which  partly  protected  them  from  the  storm. 
I  found  some  corn  for  them  in  a  crib  near  by,  and  then  went 
to  the  house,  where  I  found  a  good  fire  and  some  corn  bread 
and  cold  meat  set  on  the  table  with  a  pot  of  coffee.  Humble 
and  plain  as  it  was,  this  was  a  luxurious  re])ast;  we  were 
nearly  famished.  There  was  but  one  room  in  the  house,  in 
which  there  was  a  bed  and  under  it  a  trundle  bed,  where  a 
part  of  the  children  slept. 

Covered  as  we  were  with  mud  and  rain,  we  must  have 
presented  anything  but  a  charming  sight;  but  after  drying 
ourselves  as  well  as  we  could  b}^  the  grate  fire,  we  managed 
to  get  into  the  bed,  while  the  good  woman  nestled  into  the 
trundle  bed  with  her  little  ones. 

With  the  break  of  day  we  were  astir,  when  T  went  out  to 
feed  and  harness  the  horses,  while  the  landlady  fried  some 
meat,  with  which,  and  some  more  corn  bread,  we  made  our 
breakfast.  The  rain  had  stopped  but  the  cold  had  increased 
very  considerably,  and  the  horses,  having  been  but  partially 
protected  from  the  storm  and  still  wet  and  shivering,  were 
evidently  in  bad  humor.  However,  I  managed  to  hitch 
them  to  the  vehicle,  into  which  we  climbed,  having  com- 
pensated the  woman  liberally  for  her  kind  entertainment, 
reflecting  sharply  upon  the  contrast  between  her  kindly 
hospitality,  and  the  conduct  of  the  rich  farmer's  wife,  who 
had  refused  us  shelter  under  such  forbidding  circumstances. 

Well,  there  are  many  good  women  in  this  world,  while 
there  are  some  who  are  not  so  good;  and  we  really  thought 
that  her  husband  was  more  to  be  pitied  in  the  long  run 
than  we  were. 

When  we  started  up  to  pursue  our  journey,  the  new  horse, 
which  had  evidently  been  used  to  better  treatment,  laid  back 
his  ears  and  refused  to  budge  an  inch.  I  did  not  thrash 
him,  and  whip  him,  as  one  might  have  been  inclined  to  do, 
but  got  out  and  got  to  his  head  and  petted  him  and  coaxed 
him  till  he  seemed  to  have  attained  a  better  humor,  when  I 
got  in  and  he  started  up  and  went  along  ver^^  cheerfully; 


THE  CONFERENCE  EOOM.  157 

indeed,  he  acted  as  if  he  would  like  to  have  taken  a  run  for 
awhile.  We  pursued  our  way  slowly  but  diligently  through 
the  muddy  forest  road,  and  reached  Mt.  Vernon  soon  after 
noon,  where  we  found  Judge  Trumbull,  who  had  arrived 
before  us. 

After  we  had  got  our  dinners  we  opened  the  court,  and 
this  was  the  first  court  opened  under  the  new  constitution. 

I  have  been  thus  particular  in  describing  our  first  journey 
to  Mt.  Vernon  that  our  successors  of  the  bench  and  bar  of 
the  present  day  might  know  how  we  were  obliged  to  travel 
to  attend  our  courts  forty  years  ago. 

At  this  first  term  of  the  court  we  were  required  by  the 
constitution  to  cast  lots  for  terms  to  be  held  by  each  under 
the  first  election,  which  should  be  three,  six,  or  nine  years. 

Some  members  of  the  bar  had  expressed  the  opinion,  or 
at  least  the  expectation,  that  this  proceeding  would  be  had 
in  open  court  in  the  presence  of  the  bar  and  such  other  per- 
sons as  should  choose  to  attend,  but  we  determined  other- 
Avise;  so  after  the  court  liad  been  opened  on  the  first  day 
without  transacting  any  business  of  importance,  the  court 
was  adjourned  until  the  next  da3%  Judge  Treat  presiding 
for  the  time.  After  the  adjournment  of  the  court  we  assem- 
bled privately  in  our  room  at  Grant's,  where  we  all  sto])ped, 
and  proceeded  to  dispatch  that  duty.  Three  strips  of  paper 
were  prepared  by  Judge  TrumliuU.  On  one  of  these  Judge 
Treat  wrote  the  figure  three,  on  another  the  figure  six,  and 
on  another  the  figure  nine,  and  I  think  I  rolled  or  twisted 
them  up,  as  near  alike  as  possible,  without  knowing  the 
figure  that  was  upon  either,  and  placed  them  in  a  hat.  It 
was  agreed  that  each  should  draw  one  of  the  pieces  of  paper 
from  the  hat,  and  that  the  figure  found  upon  it  should 
determine  the  time  during  which  his  commission  should  run. 
Judge  Treat  drew  the  first  paper  and  upon  it  the  figure  nine 
was  written.  I  dreAv  the  second  and  upon  it  the  figure  six 
was  written,  and  of  course  Trumbull  drew  the  last,  on  Avhich 
was  written  the  figure  three,  and  so  our  respective  terms  of 
office  were  decided  under  that  constitution,  which  also  pro- 


loS  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

vided  that  the  one  who  drew  the  longest  term  shoukl  be  tlie 
first  chief  justice  during  his  term,  and  that  afterward  the 
judge  holding  the  oldest  commission  should  be  the  chief 
justice;  and  so  it  was  that  Judge  Treat  became  the  first 
chief  justice  of  that  court  under  the  Constitution  of  1848. 
Judge  Treat  then  drew  up  an  order  reciting  these  facts,  and 
stating  these  results,  which  upon  the  opening  of  the  court  the 
next  morning,  was  entered. 

Some  disappointment  was  expressed  that  this  imjjortant 
proceeding  had  been  transacted  in  so  quiet  and  secret  a  man- 
ner, but  there  was  no  help  for  it;  some  suggested  that  it 
looked  a  little  as  if  a  bargain  had  been  arrived  at  between 
us  as  to  what  the  result  should  be,  and  in  support  of  this  it 
was  suggested  that  Treat,  who  drew  the  longest  term,  and 
thus  became  chief  justice,  had  been  for  the  longest  time  a 
member  of  the  Supreme  Court,  while.  I,  who  drew  the  mid- 
dle term,  had  been  a  member  of  the  old  court  for  six  years, 
while  Trumbull,  Avho  drew  the  three  years  term,  now  went 
on  the  bench  for  the  first  time;  and  so  it  was  thought  that 
as  fortune  had  decided  as  most  men  cognizant  of  these  facts 
would  have  thought  it  most  appropriate  that  it  should 
be  determined,  it  looked  a  little  as  if  fortune  had  been 
helped  out  by  an  agreement;  but  this  suspicion  was  entirely 
gratuitous,  as  no  agreement  whatever  had  been  suggested 
between  us  on  the  subject.  Fortune  decided  the  matter  as 
she  saw  fit,  and  we  all  agreed  that  she  had  decided  wisely. 
At  this  first  term  of  the  Supreme  Court  of  three  judges, 
which  lasted  but  a  single  week,  some  important  cases  were 
argued,  and  I  may  now  refer  to  that  of  The  People  ex  rel. 
V.  Reynolds,  5th  Gilman  1,  which  involved  the  constitution- 
ality of  a  legislative  act.  The  Legislature  had  passed  a  law 
providing  for  the  division  of  Gallatin  county,  but  it  also 
provided  for  an  election  to  be  held  in  that  county  to  deter- 
mine whether  the  law  should  take  effect  or  not. 

Several  similar  laws  had  been  passed  and  executed  in  this 
State,  but  two  decisions  had  been  made,  one  by  the  Supreme 
Court  of  Pennsylvania,  and  the  other  by  the  Supreme  Court 


THE  CONFERENCE  ROOM.  159 

of  Delaware,  which  had  been  lately  published  in  a  law  jour- 
nal, both  denying  the  constitutionality  of  the  acts  which 
authorized  the  voters  of  individual  counties  to  determine  by 
their  votes  whether  the  sale  of  spirituous  liquors  in  their 
counties  should  be  prohibited  or  not,  and  this  upon  the 
frround  that  it  was  a  delegation  by  the  Legislature  of 
legislative  powers  to  the  voters  of  the  counties.  Those 
courts  deemed  this  a  most  dangerous  attempt  to  estab- 
lish a  pure  democracy,  which  would  be  as  dangerous  to  a 
republican  form  of  government  as  an  absolute  monarchy,  or 
at  least,  a  long  stride  in  that  direction.  There  was  no  deny- 
ing the  fact  that  these  cases  were  fairly  in  point,  and  that 
they  could  not,  without  quibbling,  be  evaded.  If  the  people 
could  not  be  authorized  to  determine  by  their  votes  whether 
the  sale  of  spirituous  liquors  in  their  counties  should  be  pro- 
hibited or  not,  then  certainly  it  was  unconstitutional  for  the 
Legislature  to  authorize  the  people  of  the  county  to  deter- 
mine by  their  votes  whether  or  not  the  county  should  be 
divided;  and  I  was  instructed  to  prepare  an  opinion  directly 
overruling  those  cases  and  maintaining  the  constitutionality 
of  the  law  in  question. 

I  did  so,  assigning  reasons  for  the  decision  which  were 
approved  by  the  other  members  of  the  court,  and  so  far  as 
I  know,  no  question  has  been  made  in  this  State  of  the  cor- 
rectness of  our  conclusions. 

Subsequently  I  understood  the  Supreme  Court  of  Mich- 
igan made  a  decision  which  practically  overruled  this  case, 
although,  I  believe,  it  attempted  to  draw  a  distinction  be- 
tween their  case  and  ours.  And  I  think  about  this  time  a 
similar  question  arose  in  New  York,  in  which  the  decisions 
in  Pennsylvania  and  Delavrare  were  said  to  have  been  fol- 
lowed; I  have  never  hunted  them  up,  and  so  can  not  speak 
positively  on  the  subject,  but  I  must  be  allowed  to  express 
a  doubt  whether,  in  either  of  those  States,  it  is  now  held  to 
be  unconstitutional  to  pass  a  law  authorizing  the  voters  in 
a  local  municipality  to  determine  by  their  votes  whether  or 
not  ardent  s])irits  shall  be  sold  within  their  limits. 


160      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

The  case  of  The  People  v.  The  City  of  St,  Louis  was 
heard  at  the  next  session  of  the  court,  at  the  December 
term,  1848,  at  Springfield,  in  which  Trumbull  did  not  sit. 
having  been  counsel  in  the  case,  and  the  record  was  assigned 
to  me  to  prepare  the  opinion.  It  was  a  bill  in  chancery  to 
restrain  the  city  of  St.  Louis  and  many  individuals  from 
committing  a  nuisance  by  filling  up  the  channel  of  the  Missis- 
si]  )pi  river,  flowing  between  Bloody  Island  and  the  main 
land  at  East  St.  Louis.  The  main  channel  of  the  river  was 
west  of  Bloody  Island,  thus  leaving  the  island  within  this 
State,  but  the  channel  east  of  the  island,  through  which 
two  fifths  of  the  water  of  the  river  flowed,  was  not  so  deep 
or  so  broad  as  the  main  channel;  still  it  was  navigable  for 
the  lighter  class  of  steamers,  barges,  and  other  water  craft 
in  an  ordinary  stage  of  water,  and  in  fact  was  soon  navi- 
gated more  or  less  constantly. 

The  encroachments  upon  the  river  on  the  Illinois  shore 
above  Bloody  Island  were  such  as  to  threaten  to  cut  a  new 
channel  east  of  the  island,  and  thus  deprive  the  citv  of  St. 
Louis  of  the  benefits  of  the  deeper  channel,  which  it  then 
enjoyed,  and  this  would  undoubtedly  have  been  a  terrible 
calamity  to  that  city. 

To  avert  this  threatened  danger  St.  Louis  made  arrange- 
ments with  the  riparian  ovv^ners  on  the  Illinois  shore,  and 
proceeded  to  fill  up  that  channel  between  the  island  and 
the  main  land  in  such  a  way  that  if  it  ever  had  been  com- 
]:)leted  it  would  have  been  impossible  to  ever  have  removed 
the  obstruction,  and  this  without  having  applied  to  the  Illi- 
nois Legislature  to  do  so;  the  bill  was  filed  to  restrain  this 
action  on  the  ground  that  it  was  a  nuisance  to  obstruct  a 
public  highway  within  the  State. 

The  Circuit  Court  of  St.  Clair  County  refused  to  grant  the 
injunction,  and  the  case  Avas  brought  to  the  Supreme  Court 
by  appeal.  It  may  be  readily  understood  that  a  most 
intense  interest  was  felt  by  the  citizens  of  St.  Louis  while 
the  case  was  pending  in  our  court,  and   many  of  its  able 


THE  CONFERENCE  ROOM.  161 

lawyers   and  prominent  citizens  came  up  to  Springfield  to 
Avatcli  the  proceedings. 

Tlie  case  was  argued  before  us  by  P.  B.  Fouke  for  the 
appellants,  and  by  Crum  antl  Blennerhassett  for  St.  Louis. 
Many  important  questions  were  raised  and  discussed,  but 
the  one  of  greatest  interest  was,  what  were  the  jurisdictions 
and  powers  of  the  States  through  which,  or  along  the  bor- 
ders of  which,  the  Mississippi  river  flows. 

It  became  my  duty  to  write  the  opinion  of  the  court  in 
this  case,  and  I  confess  I  approached  it  with  some  diffidence. 
The  principal  question  which  created  solicitude  in  our 
minds  in  considerino;  the  case  was  to  determine  the  rig-hts 
and  powers,  or  the  jurisdiction  the  several  States  in  whose 
boundaries  a  part  of  this  river  lies,  have  over  the  bed 
of  that  stream.  After  much  consideration  we  decided  that 
the  Mississippi  river  was  a  navigal)le  highway,  under  the 
absolute  control  of  the  State,  as  much  as  are  the  public 
roads  on  land,  restricted  and  qualified  only  by  the  Spanish 
treaty  and  by  the  ordinance  of  1787,  which  secures  to  all 
the  citizens  of  the  United  States  the  free  navigation  of  a 
river,  without  tax  or  toll.  If  such  navigation  is  maintained, 
then  the  State  may  do  what  it  pleases  with  the  bed  of  a 
river.  It  may  fill  u])  all  its  channels  except  the  main  chan- 
nel in  the  navigation,  in  which  all  the  citizens  of  the  United 
States  have  an  interest  and  a  right.  But  no  individual  or 
corporation,  without  the  sanction  of  the  State,  has  a  right  to 
obstruct  any  part  of  it,  any  more  than  they  would  have  the 
right  to  ol)struct  any  public  highway  or  land,  without  legal 
authority  or  consent.  That  river  as  well  as  all  other 
navigable  rivers  running  into  it  are  public  higliAvays,  and 
as  such  are  subject  to  State  control.  The  State  has  even 
the  right  to  change  the  channel  of  any  of  these  navigable 
rivers  within  its  borders,  provided  it  leaves  its  navigability 
unimpaired. 

Upon   the  argument   of   this   cause   no    case  was   cited 
determining   the   authority  of   the   several    States   within 
whose  borders  portions  of  this  great  river  are  situated,  over 
11 


1G2       EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

such  portions  as  are  within  their  several  boundaries,  and 
our  own  researches  during  the  conference  failed  to  find  any 
case  in  any  of  the  States  where  this  important  question  had 
been  decided.  Many  physical  peculiarities  are  exhibited  by 
this,  one  of  the  great  rivers  of  the  world,  and  it  was  im- 
portant that  we,  to  whom  was  first  submitted  this  great 
question,  sliould  so  decide  it  that  it  should  be  approved  and 
followed  by  the  independent  courts  of  last  resort  of  the 
several  States  similarly  situated.  Analogous  cases  were 
not  wanting  in  this  country  and  in  England  in  reference  to 
navigable  waters,  but  ])iiysical  conditions  and  political 
boundaries  existed  here,  which  rendered  these  analogies  far 
from  parallels  to  our  case. 

Whether  the  questions  "which  Avere  decided  in  that  case 
have  arisen  and  been  determined  in  other  States  I  have  not 
examined  to  see,  yet  I  'confess  I  would  be  interested  to 
know  whether  such  has  been  the  case  or  not,  and  how  they 
were  determined. 

II. 

SERVICE    IN   THE    SUPREME    COURT SCENES    IN    THE    CONFERENCE 

ROOM. 

The  conference  room  of  a  court,  consisting  of  several 
members,  is  a  school  in  which  human  nature  ma}^  be  studied 
to  advantage,  as  well  as  other  characteristics  which  go  to 
make  up  the  man  and  the  judge,  but  few  who  have  sat  upon 
the  bench  of  a  court  of  last  resort  have  ever  been  associated, 
at  different  times,  with  a  greater  number  of  individual  mem- 
bers of  the  court  of  which  he  constituted  a  part,  than  I  have 
been.  During  my  service  on  the  supreme  bench  of  this 
State,  covering  a  period  of  nearly  twenty-two  years,  there 
were  associated  with  me  seventeen  different  judges,  some 
for  many  years  and  others  but  for  short  periods,  and  I  can 
now  say,  with  great  satisfaction,  that  during  all  that  time 
the  greatest  personal  liarmon}"  prevailed  in  the  conference 


THE  CONFERENCE  EOOU  163 

room,  and  I  may  say,  out  of  it,  among  the  members  of  the 
court.  JS'ever  did  I  hear  between  any  two  members  of  the 
court,  any  offensive  or  acrimonious  word  passed.  Neces- 
sarily, differences  of  opinion  often  existed  between  the  mem- 
bers upon  questions  arising  before  us,  and  these  were  often 
considered  and  discussed  Avith  earnestness  and  animation, 
but  never  with  feelings  or  expressions  of  bitterness,  never 
with  the  apparent  object  of  securing  a  triumph,  but  always 
for  the  manifest  purpose  of  arriving  at  the  truth,  and  obtain- 
ing a  proper  legal  decision.  Often,  indeed,  some  of  us  had 
to  yield  something  for  the  sake  of  harmon}^,  and  all  seemed 
disposed  to  do  this  when  it  could  be  done  without  yielding 
up  a  principle  which  was  deemed  vital  in  itself,  and  was 
thought  to  establish  a  precedent  which  it  was  believed 
would  have  to  be  reversed  at  some  future  time;  and  then, 
and  only  then,  was  the  dissent  expressed  in  an  opinion  which 
went  upon  the  records. 

I  am  glad,  indeed,  of  an  opportunity  to  testify  to  the  single- 
ness of  purpose,  and  the  earnest  'desire  of  each  member  of 
the  court  to  attain  and  express  conclusions  which  would 
reflect  the  law  as  it  was,  and  which  should  stand  the  test  of 
time. 

In  a  former  paper  of  this  series,  I  deemed  it  proper  to  open 
the  door  of  the  conference  room  a  little  way,  and  now  I  pro- 
pose to  open  it  a  little  further;  but  not  so  as  to  expose  any 
of  those  secrets  which  propriety  requires  should  ever  remain 
undivulged.  The  mode  of  conducting  business  in  the  con- 
ference room  when  I  went  upon  the  bench,  in  1S42,  would 
later  have  been  considered  crude  and  unsystematic;  but  the 
limited  amount  of  business  did  not  require  that  system  and 
order  for  its  dispatch,  which  was  necessary  in  later  years. 
Of  course,  the  chief  justice  presided  in  the  conference  room 
as  he  did  upon  the  bench,  but  he  did  it  in  a  social  way  rather 
than  in  a  formal  mode.  No  notes  or  minutes  were  kept 
of  the  proceedings  in  the  conference  room.  Usually  a  case 
was  considered  as  soon  as  it  was  finally  submitted,  and  as 
we  never  had  printed  records  and  rarely  abstracts  of  any 


164       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

kind,  or  even  written  briefs,  but  only  notes,  which  we  ke])t 
ourselves,  of  the  authorities  quoted,  our  discussions  of  the 
case  in  the  conference  room  were  usually  based  upon  tlie 
arguments  which  we  had  heard  at  the  bar.  Chief  Justice 
Wilson  did  not  possess  to  an  eminent  degree  the  faculty  to 
critically  analyze  a  case,  and  evolve  with  precision  the  points 
upon  which  its  decision  must  turn,  but  in  the  course  of  the 
consideration  of  the  case  in  the  conference  room,  these  would 
come  to  be  pretty  distinctly  defined  from  the  various  sugges- 
tions  made  by  different  judges,  and  as  this  is  really  the  first 
necessary  thing  to  be  done  in  considering  a  case,  some  of  the 
judgeg  at  least,  made  it  a  point  to  accomplish  that  end  as 
soon  as  possible.  This  is  necessary  to  enable  one,  as  ex- 
pressed by  one  of  the  judges,  to  think  at  a  mark;  by  which 
he  no  doubt  meant  that  one's  thoughts  must  be  focused 
upon  a  single  point  rather  than  to  have  them  scattered  all 
over  the  side  of  a  barn. 

While  nominally  the  chief  justice  distributed  the  records 
amono-  the  members  of  the  court  for  a  more  thorouo^h  ex- 
amination  and  for  Avriting  out  the  opinion  of  the  court,  prac- 
tically we  did  that  for  ourselves. 

The  older  meml)ers  of  the  court  seemed  very  willing  to 
avoid  the  labor  of  writing  opinions,  while  several  of  the 
younger  members  sought  for  records,  which  would  give 
them  opportunities  to  get  into  the  reports  by  the  opinions 
Avhich  they  should  write,  and  the  limited  amount  of  busi- 
ness was  hardly  sufficient  to  satisfy  these  ambitious  young 
men,  while  the  chief  justice  seemed  to  appreciate  the  laud- 
able ambition  which  inspired  this  desire  for  work,  for  it  was 
a  sure  guaranty  that  no  labor  would  be  spared  to  understand 
the  record,  and  to  search  up  all  the  law  bearing  upon  the 
questions  involved.  Besides,  the  discussion  in  the  conference 
room  served  to  point  out  which  of  the  judges  seemed  to 
have  the  clearest  idea  of  a  case  or  to  best  understand  the 
law  applicable  to  it,  and  so  would  be  designated  the  one  to 
whom  the  record  might  most  properly  be  given.  Kot  that 
the  case  would  then  be  left  entirely  to  the  one  to  vrhom 


THE  CONFERENCE  ROOM.  165 

« 
it  was  assigned,  but   several  other  menibors  of  the  court, 

at  least,   made   it   a   ]ioint   to   carefully  examine   all   the 

records  of  any  importance  and  the  law  involved  in  the  case, 

so  that  when  the  opinion  was  read  in  conference,  the  case 

was  again  carefully  discussed  and  considered. 

As  the  business  of  the  court  increased,  more  system  was 
required,  but  still  very  little  change  took  place  during  the 
period  of  the  nine  judges. 

During  the  period  of  the  three  judges  much  im]:»rovement 
was  made  in  the  mode  of  proceeding  in  the  conference 
room. 

The  first  rule  requiring  anything  printed  in  the  record 
was  in  18.55,  which  demanded  printed  aljstracts  to  be  filed, 
and  in  ls5(i  printed  briefs  were  required.  Printed  records 
were  not  required  during  my  time.  These  rules  relieved  the 
judges  of  a  great  deal  of  work,  which  had  l)een  previously 
required  to  give  them  a  full  understanding  of  the  cases 
which  they  had  to  decide.  If  the  abstract  filed  by  the  ap- 
])ellant  or  plaintiff  in  error  was  not  satisfactory  to  the  other 
party,  he  could  file  an  abstract  himself,  or  so  much  of  an 
abstract  as  he  deemed  necessary  to  supply  the  defects  of  the 
other,  and  we  assumed  by  the  use  of  these  that  we  could 
fairly  learn  what  the  record  contained,  though  we  frequently 
found  it  necessary  to  go  to  the  original  record,  especially  in 
cases  where  the  two  abstracts  disagreed.  This  was  always 
done  in  full  conference  while  I  was  on  the  bench,  and  the 
briefs  were  examined  in  the  same  way,  and  the  authorities 
read,  and  in  most  cases  the  whole  matter  was  discussed  be- 
tween us,  and  a  decision  agreed  upon  at  the  time,  though  it  was 
not  unfrequent  that  after  a  thorough  discussion  among  our- 
selves the  consideration  of  a  case  was  postponed  for  further 
examination  by  each  judge  individually,  after  which  it  was 
again  called  up,  further  discussed,  and  finally  decided. 
This  was  invariably  the  rule  during  my  time. 

It  sometimes  occurred  that  we  could  not  arrive  at  a  satis- 
factory conclusion  during  the  term,  when  the  case  was  laid 
over  for  a  further  examination  by  the  judges  separatelv  dur- 


16G  EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

iug  the  succeeding  vacation.  I  may  hereafter  refer  to  a  few 
of  these  cases. 

When  I  became  chief  justice  in  1855,  I  introduced  the 
practice  in  the  conference  room  of  keeping  an  agenda.  This 
consisted  of  a  small  bound  book  in  Avhich  I  entered  the  title 
of  each  case  and  set  down  under  it  the  several  points 
which  it  was  deemed  necessary"  to  decide  and  the  decision 
upon  each  point  agreed  u])on.  These  notes  of  decision  were 
made  at  the  time,  and  in  the  presence  of  all  the  judges, 
read  over  and  corrected,  when  necessary,  to  meet  the  views 
of  all,  and  sometimes  a  few  of  the  prominent  reasons  were 
also  inserted  in  the  agenda,'  a  copy  of  this  was  made  for 
each  of  the  judges,  and  therein  was  also  stated  the  judge 
Avho  was  to  write  the  opinion.  In  cases  where  we  dis- 
agreed upon  any  point,  that  was  pretty  fully  stated  in  the 
agenda,  and  the  case  was  usually  hekl  over  for  further  con- 
sideration until  the  next  term,  and  so  of  cases  or  points 
where  some  one  or  all  of  us  desired  further  time  to  examine 
and  consider  them.  All  of  these  cases  I  transferred  to  the 
new  agenda  for  the  next  term,  for  a  separate  agenda  was 
always  prepared  for  each  term. 

This  agenda  system  we  found  of  the  greatest  value.  It 
economized  time  and  secured  accuracy,  and  it  sometimes 
corrected  mistakes. 

The  judge  in  writing  the  opinion  had  before  him  a  full 
minute  of  the  points  to  be  decided  in  the  opinion,  and  when 
he  read  it  in  conference,  each  of  the  other  judges,  having  his 
agenda  before  him,  could  instantly  see  if  the  opinion  accorded 
with  the  decision  which  had  been  agreed  upon.  It  some- 
times happened  that  the  judge  in  writing  out  his  opinion 
changed  his  mind  upon  some  point,  when  he  would  write  out 
his  opinion,  according  to  his  present  convictions,  to  what  it 
should  be,  and  so  departed  from  the  notes  in  the  agenda. 
In  that  case,  of  course,  a  thorough  reconsideration  of  the 
matter  was  necessary,  and  I  recollect  that  almost  invariably 
the  change  was  approved,  and  I  have  no  doubt  that  thus  many 
motions  for  rehearing  were  avoided.     Whether  this  agenda 


THE  CONFERENCE  ROOM.  ITjy 

system  lias  been  continued  since  I  left  the  bench  I  have  no 
means  of  knowing,  but  if  it  has  not,  no  doubt  it  has  been 
aljandoned  for  good  reasons;  and  whether  it  has  been  possi- 
ble for  the  court  to  thoroughly  examine  the  case  in  full 
conference,  as  it  was  done  in  former  times,  of  course  I  have 
no  means  of  knoAving. 

Of  the  old  judges  who  were  on  the  bench  in  1842,  when  I 
took  my  seat,  there  were  two  associate  justices  of  the  first 
Supreme  Court,  organized  after  the  adoption  of  the  consti- 
tution in  1819,  and  upon  the  re-organization  of  the  court  in 
1S25,  "Wilson  was  made  chief  justice  and  Brown  associate 
justice,  together  with  Samuel  D.  Lockvv-ood  and  Theophilus 
W.  Smith.  Judo-e  Smith  died  before  I  went  on  the  bench, 
so  that  Wilson,  Lockwood  and  Brown  only  remained  of  the 
judges  who  constituted  the  court,  previous  to  the  re-organi- 
zation of  1848.  With  them  I  was  associated  on  the  bench 
for  six  years,  and  learned  to  know  them  well. 

Chief  Justice  Wilson  was  a  man  of  good  parts,  a  thorough 
gentleman,  courteous  and  affable,  pleasant,  and  of  a  very 
cheerful  disposition.  He  was  fond  of  a  good  joke,  even  at 
his  own  expense,  or  that  of  his  best  friend.  He  appreciated 
liumor  and  told  a  story  well.  He  was  a  good  law^^er,  but 
not  a  great  law^^er.  He  had  read  law  books  to  good  pur- 
])ose,  but  not  nearly  as  many  of  them  as  many  others  have. 
He  comprehended  well  a  principle  of  law  when  stated  or 
read  to  him,  and  when  a  case  was  cited  in  support  of  an^^ 
proposition  of  law  he  readily  determined  whether  it  was 
applicable  or  not;  and  here  let  me  say  that  an  inability  to 
do  this  is  a  very  common  defect  among  a  considerable  pro- 
portion of  lawyers;  at  least,  very  many  of  the  lawyers 
who  have  argued  cases  before  me,  have  cited  cases  in  sup- 
port of  a  position  with  the  undoubted  conviction  that  they 
were  certainly  in  point,  and  could  never  be  made  to  see  that 
it  was  otherwise,  when,  in  truth,  they  lacked  that  analogy 
to  the  one  at  bar  which  alone  could  make  the  decision  ap- 
plicable. This  defect  is  incurable  and  can  not  be  remedied 
by  education  or  study,  or  the  mosi  industrious  training. 


168  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

The  trouble  is,  that  they  can  never  be  made  to  comprehend 
the  distinction,  which  is  palpable  to  the  great  majority  of 
law3'ers.  On  the  other  hand,  I  have  met  with  a  few  law- 
yers whose  perceptions  Avere  so  fine  and  delicate  that  thev 
could  see  a  distinction  which  could  not  be  apj^reciated  by 
the  ordinary  mind,  by  Avhich  I  mean  the  great  mass  of  able 
law3^ers,  who  can  make  others  see  it  as  they  see  it  them- 
selves. 

Chief  Justice  Wilson  was  of  this  latter  class.  He  did  not 
know  all  the  law  that  there  is,  nor  does  any  other  man  that 
lives,  but,  as  I  have  said,  he  had  the  capacity  to  understand 
the  law  when  it  was  read  to  him,  or  was  stated  to  him  in 
argument,  with  the  reasons  in  support  of  it,  and  this  is  a 
capacity  of  the  greatest  value  in  a  judge.  I  have  stated 
that  he  was  sociable  and  agreeable  in  his  nature,  fond  of 
pleasantry,  could  tell  a  good  story  and  tell  it  well,  and  often 
when  tired  of  hard  thinking  and  of  listening  to  dr}""  discus- 
sions in  the  conference  room  he  would  break  in  and  tell  some 
good  story,  which  would  be  a  relief  and  rest  to  all.  "  Why," 
said  he  "  Judge,"  breaking  in  upon  one  of  us,  during  one  of 
these  dry  discussions,  "  you  remind  me  of  a  lawj^er  who 
lived  on  the  other  side  of  the  Wabash,  who  came  across  the 
river  to  our  side  to  try  a  cause  before  a  justice  of  the  peace. 
A  Sucker  lawyer  was  on  the  other  side  and  in  the  course  of 
the  trial  he  asserted  some  principle  which  the  Hoosier  lawyer 
denied  most  strenuously.  After  the  dispute  had  gone  on  for 
some  time  the  Sucker  took  up  the  Illinois  statutes,  and  read 
an  act  Avhich  changed  the  common  law,  and  declared  the 
law  to  be  as  he  had  asserted  it.  At  this  the  foreign  gentle- 
man seemed  dumbfounded  for  a  moment  and  Avas  silent.  He 
finally  arose  Avith  great  deliberation,  and  sorroAV  clearly 
depicted  upon  his  countenance,  and  said,  '  May  it  please  the 
court,  Avhen  I  hear  of  the  assembling  of  a  legislature  in  one 
of  these  Westei'n  States,  it  reminds  me  of  a  cry  of  fire  in  a 
populous  city.  Nobody  knows  AA^hen  he  is  safe.  Iso  one 
can  tell  AA^here  the  ruin  will  end.' " 

The  chief  justice  and  Judge  LockAvood  were  very  Avarm 


THE  CONFERENCE  ROOM.  IGO 

personal  friends,  and  had  been  very  intimate,  almost  from 
their  first  acquaintance,  when  both  were  bachelors,  and  old 
bachelors  at  that.  Wilson  was  married  first,  and  brouglit 
his  wife  from  Virginia  and  settled  down  to  housekeeping  on 
the  Walmsh  river.  Once,  in  the  conference  room,  at  my  first 
term  on  the  bench,  Judge  Lockwood  was  discussing  some 
question  with  an  earnestness  which  showed  that  he  thought 
he  certainly  knew  what  he  was  talking  about.  After 
listening  some  time  to  Lock  wood's  confident  manner  of 
maintaining  his  point,  the  chief  justice  turned  to  me  and 
said :  "  Caton,  Lockwood  knows  a  great  deal,  but  he  some- 
times thinks  he  knows  more  than  he  does.  I  well  remember 
that  a  few  months  after  I  got  married  and  brought  mv  wife 
to  Illinois,  Lockwood  came  all  the  way  across  the  State  to 
visit  and  congratulate  me,  and  we  had  the  pleasure  of  his 
society  for  a  number  of  days.  One  morning  Mrs.  Wilson 
did  not  appear  at  the  breakfast  table,  and  in  answer  to  his 
inquiries  I  told  him  that  she  felt  quite  unwell,  that  she  was 
suffering  considerable  pain  and  especially  in  the  small  of 
lier  back,  and  that  the\"  could  not  conceive  what  was  the 
matter  as  she  was  usually  very  healthy. 

"  Lockwood  remarked  that  it  was  nothing  serious,  that 
he  had  been  troubled  several  times  with  the  same  complaint 
himself,  and  that  he  always  found  relief  by  the  ap])lication 
of  a  bag  of  hot  salt  to  the  small  of  the  back,  and  recom- 
mended that  the  same  remedy  be  resorted  to  now.  This 
was  done,  and  the  relief  soon  came,  but  in  a  way  by  no 
means  desirable;  it  was  in  the  loss  of  a  prospective  heir; 
and  Lockwood  has  never  been  able  to  convince  me  that  he 
had  been  troubled  with  the  same  disease,  and  had  found 
relief  in  the  same  way,  and  I  have  ever  since  believed  that 
for  once,  at  least,  he  was  mistaken," 

During  this  recital  Lockwood  seemed  restive  and  im- 
patient, for  any  joke  at  his  expense  tended  to  annoy  him. 


170       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

III. 

THE  JUDGES  OF  THE  SUPREME  COUET. 

Samuel  D.  Lockwood  was  the  first  judge  whose  acquaint- 
ance I  made  in  the  State  of  Illinois.  When  living,  I  revered 
him  as  a  man  and  as  a  jurist,  and  I  revere  his  memory  since 
he  has  departed.  I  first  met  him  the  fifth  of  October,  1833, 
Mdien  he  was  liolding  the  Circuit  Court  at  Pekin  in  Taze- 
well county,  where  I  arrived  in  the  afternoon  on  horseback 
from  Chicago.  I  first  saw  him  on  the  bench,  and  after 
court. adjourned  for  the  day,  I  introduced  myself  to  him, 
and  explained  that  I  was  already  practicing  law  in  Chicago, 
but  had  not  yet  received  a  license,  Avhich  I  wished  to  pro- 
cure from  him  should  he,  upon  examination,  find  me  quali- 
fied to  commence  the  practice  of  the  profession.  He  re- 
ceived me  most  kindly,  and  treated  me  with  the  utmost 
courtesy  and  consideration,  introduced  me  to  the  members 
of  the  bar  present,  among  whom  I  remember  Stephen  T. 
Loo-an,  John  T.  Stewart,  John  J.  Harden  and  Dan  Stone, 
who  were  attending  that  court  from  abroad,  all  of  Avhom.  I 
then  first  met.  The  judge  then  inquired  of  the  place  of  my 
nativity,  whence  I  came  and  when. 

After  supper  he  invited  me  to  take  a  walk.  It  was  a 
beautiful  moonlit  night;  we  strolled  down  to  the  bank 
of  the  river,  he  leading  the  conversation  on  various  subjects, 
and  when  ^ve  arrived  at  a  large  oak  stump,  on  either  side  of 
which  we  stood,  he  rather  abruptly  commenced  the  exam- 
ination by  inquiring  with  whom  I  had  read  law  and  how 
long,  what  books  I  had  read,  and  then  inquired  of  the  dif- 
ferent forms  of  action,  and  the  objects  of  each,  some  ques- 
tions about  criminal  law.  and  the  law  of  the  administration 
of  estates,  and  especially  of  the  provisions  of  our  statutes  on 
these  subjects. 

I  was  surprised  and  somewhat  embarrassed  to  find  myself 
so  unexpectedly  undergoing  the  examination,  and  bungled 
considerably  at  the  first  when  he  inquired  about  the  different 


SAMUEL    1).    L()CKW(JUD. 


THE  CONFERENCE  R00i[.  171 

forms  of  action,  but  lie  kindly  helped  me  out  by  more  spe- 
cific questions,  which,  directed  my  attention  to  the  points 
about  which  he  Avished  to  test  my  knowledge,  Avhen  I  got 
along  more  satisfactorily. 

I  do  not  think  that  the  examination  occupied  more  than 
thirty  minutes,  but  it  had  the  effect  of  starting  a  pretty  free 
])erspiration.  I  think  I  would  have  got  along  much  better 
had  it  commenced  in  a  more  formal  way.  However,  at  the 
close  he  said  he  would  give  me  a  license,  although  I  had 
much  to  learn  to  make  me  a  good  lawyer,  and  said  I  had 
better  adopt  some  other  pursuit,  unless  I  was  determined 
to  work  hard,  to  read  much  and  to  think  strongly  of  what 
I  did  read;  that  good  strong  thinking  was  as  indispensable 
to  success  in  the  profession  as  industrious  reading;  but  that 
both  were  absolutely  important  to  enable  a  man  to  attain 
eminence  as  a  Ir.wyer,  or  even  respectability. 

I  thanked  him  for  his  advice  and  assured  him  that  I 
had  no  ambition  in  life  except  to  qualify  myself  for  a  high 
position  in  the  profession,  and  that  I  thought  that  ambition 
would  enable  me  to  follow  his  advice  to  its  utmost  extent, 
and  that  I  believed  I  had  firmness  of  character  and  of  pur- 
pose enough  to  enable  me  to  do  so,  though  it  might  take 
long  years  devoted  to  that  single  purpose  to  accomplish  it ; 
and  I  may  now  say  that  I  faithfully  lived  up  to  the  promise 
I  then  made  to  my  venerable  friend — for  he  seemed  so  to 
me — but  he  was  then  only  in  middle  life,  though  his  hair 
was  almost  as  w^iite  as  snow.  His  kindly  bearing  to  me 
then  made  an  impression  which  never  faded  in  all  of  the 
vicissitudes  of  after  life,  and  whenever  I  disagreed  with  him 
in  the  conference  room  I  did  so  with  great  hesitancy,  and 
whenever  he  changed  his  views  so  as  to  conform  Avith 
mine  I  still  feared  that  I  might  be  wrong  after  all.  In  his 
private  character  he  was  a  model  of  purity  and  propriety. 

If  Judge  LockAvood  Avas  not  a  great  man,  he  Avas  a  good 
man  and  a  good  judge.  He  had  been  a  close  student  of  the 
law,  and  seemed  to  have  read  everything  Avithin  his  reach. 
His  perceptions  Avere  very  clear  and  discriminating.     He 


172  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

had  a  high  sense  of  justice,  yet  he  would  not  hesitate  to  en- 
force the  law  as  he  found  it  although  he  might  think  that 
in  a  particular  case  it  worked  injustice.  His  high  sense  of 
the  proprieties  of  life  Avas  as  conspicuous  in  the  conference 
room  as  in  every  other  walk  of  life.  His  sympathies  were 
easily  awakened  and  were  ever  active,  and  yet  they  were  so 
under  the  control  of  his  sterner  feelings  and  his  sense  of  duty 
that  it  could  never  lead  him  to  Avarp  the  law  in  obedience  to 
its  demand.  His  discrimination  was  always  keen,  but  ever 
practical.  He  had  an  exalted  opinion  of  State  rights,  in 
which  I  could  not  always  agree  with  him,  and  I  once  wrote 
a  dissenting  opinion  in  which  I  maintained  that  the  provision 
of  the  United  States  Constitution,  which  secures  to  all  in- 
nocent persons  the  rights  to  life,  liberty  and  property,  pro- 
hibits a  State  constitution  to  reduce  a  free  man  to  a  state  of 
servitude,  who  is  not  guilty  of  any  crime.  The  opinion 
which  had  been  read  in  that  case  was  so  modified  after  I 
read  my  dissenting  opinion  as-  to  avoid  that  question,  so  it 
was  never  filed.  His  active  efforts  to  defeat  the  constitution 
which  proposed  to  make  Illinois  a  slave  State  showed  what 
were  his  individual  sentiments  on  that  subject,  and  his  efforts 
in  that  great  controversy  were  remembered  as  long  as  the 
controversy  itself  was  fresh  in  the  memory  of  men.  All 
his  acts  and  thoughts  were  the  reverse  of  austerity,  without 
lowering  his  dignity  in  the  least  on  proper  occasions.  His 
social  qualities  were  pleasing.  He  enjoyed  humor  and  a 
good  anecdote,  but  was  not  as  good  a  story  teller  as  many 
of  his  contemporaries.  His  style  of  writing  was  easy  and 
perspicuous,  and  whoever  will  carefully  study  his  opinions 
will  not  fail  to  see  that  he  was  a  close  and  accurate  thinker, 
a  diligent  student,  and  a  terse  writer. 

The  jurisprudence  of  Illinois  owes  much  to  Judge  Lock- 
wood,  for  he  was  a  potent  power  in  laying  its  foundation, 
and  his  labors  and  efforts  at  that  early  day  should  never 
be  forgotten;  I  have  ever  esteemed  it  as  one  of  my  most 
happy  privileges  that  I  could  benefit  by  so  intimate  associa- 
tion with  him  at  so  early  a  period  of  my  life. 


THOMAS    C.    BROWNE. 


THE  CONFERENCE  ROOM.  173 

Judge  Thomas  C.  Brown  was  the  only  remaining  member 
of  the  old  court  of  four  judges  before  whom  I  practiced  in 
the  Supreme  Court,  for  Judge  Smitli  had  died  before  I  came 
to  the  bench,  and  so  I  was  never  associated  with  him  in  that 
tribunal. 

Judge  Brown  was  really  a  remarkable  man  in  several 
respects.  If  he  ever  read  a  law  l)()ok  it  was  so  long  ago  that 
he  must  have  forgotten  it.  He  had  already  occupied  a  seat 
u[)on  the  supreme  bench  for  twenty-four  years,  from  the 
first  organization  of  the  court  upon  its  admission  into  the 
Union  as  a  State.  During  all  that  time  I  have  reason  to 
l)elieve  that  he  never  wrote  an  o}>inion.  One  of  the  opin- 
ions which  appears  to  h.ave  been  written  by  him  in  the 
reports,  Judge  Breese  testified  before  the  Legislature  in  a 
])roceeding  depending  in  that  body,  that  he  wrote  the  opin- 
ion for  Judge  Brown.  In  the  conference  room  I  never 
heard  him  attempt  to  argue  any  question,  for  he  did  not 
seem  to  be  able  to  express  his  views  in  a  sustained  or  logical 
form,  and  yet  he  vv^as  a  man  of  very  considerable  ability, 
and  had  very  distinct  views  of  his  own  on  questions  that 
came  before  him  for  decision. 

He  had  been  listening  to  arguments  before  the  court  for 
more  than  twenty  years;  and  I  may  say  here  that  it  is  the 
best  school  that  any  man  can  attend  to  learn  the  law.  The 
lecture  of  a  learned  professor  to  a  class  in  a  law  school, 
however  important  to  a  student  in  the  beginning,  can  bear 
no  comparison  to  the  arguments  before  an  appellate  court, 
where  every  argument  is  a  lecture  upon  some  ]:)articular 
question  or  questions,  generally  ])repare(l  by  an  able  man, 
who  exhausts  the  subject  to  a  greater  or  less  extent;  and  if 
the  arguments  are  one-sided  arguments,  and  so  might  mis- 
lead the  student,  the  misleading  arguments  are  sure  to  be 
met  by  the  counsel  on  the  other  side,  so  that  the  judge  or 
the  student  hears  the  reasoning  and  authorities  which  may 
be  produced  on  Ixjth  sides,  and  he  is  enabled,  if  he  is 
capable  of  doing  so,  to  understand  what  the  law  is  in  the 
particular  case. 


1  74      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

There  were  very  able  law^^ers  who  practiced  before  that 
court  in  its  earliest  days,  as  well  as  since,  and  no  one  conld 
have  listened  to  their  legal  discussions  for  twenty  years 
without  hearing  and  learning  a  great  deal  of  law  if  he  was 
only  capable  of  comprehending  it.  Xow,  Judge  Brown  did 
not  lack  this  capacity,  but  he  did  lack  the  capacity  of 
clearly  expressing,  either  in  writing  or  orally,  his  thoughts 
in  a  clear  and  perspicuous  manner.  He  could  express  him- 
self in  conversation  so  as  to  be  well  understood,  but  never 
in  the  form  of  a  sustained  discussion.  He  expressed  himself 
in  epigrams,  or  short  and  pungent  sentences  which  showed 
that  he  was  a  good  thinker,  and  had  clear  and  distinct 
views  of  his  OAvn.  He  was  a  profound  student  of  nature, 
and  could  judge  with  great  accuracy,  not  only  of  individual 
character,  but  of  what  would  influence  the  minds  of  men. 
He  listened  attentively  to  the  discussions  in  the  conference 
room,  and  would  never  express  his  opinion,  especially  in  an 
important  case,  until  he  had  heard  all  that  could  be  said  on 
either  side  by  other  members  of  the  court,  for  he  appre- 
ciated that  he  could  not  well  maintain  his  views  by  argu- 
ment; but  he  Avould  often  throAV  in  pungent  expressions, 
which  of  themselves  would  contain  a  pretty  extended  argu- 
ment. At  the  session  of  the  General  Assembly  in  1844-5, 
when  Shields  and  myself  were  holding  commissions  by  ap- 
pointment, and  so  our  terms  would  expire  with  the  adjourn- 
ment of  the  Legislature,  a  fearful  spasm  of  economy  seemed 
to  sweep  over  it,  and  a  bill  was  introduced  fixing  the  salary 
of  the  supreme  judges  at  one  thousand  dollars  per  annum. 
x\s  this  could  only  take  effect  upon  Shields  and  myself, 
should  we  be  elected,  a  committee  was  appointed  to  wait 
upon  the  other  judges,  whose  salaries  were  protected  by  the 
Constitution,  and  get  their  written  consent  to  this  reduction 
of  their  salaries.  Of  course  those  judges,  who  felt  as  inde- 
])endent  of  the  Legislature  as  they  were  of  the  judges, 
politely  declined  to  agree  to  any  such  proposition.  These 
visits  were  not  made  to  the  judges  in  the  conference  room, 
but   they  were  made  to   them   severally   or   individually. 


THE  CONFERENCE  ROOM.  175 

When  Manning,  an  able  lawyer,  and  a  member  from  Peoria, 
approached  Brown  with  a  proposition,  he  replied  :  "  Per- 
jur}',  perjury,  sir;  you  ask  me  to  commit  perjury.  The 
Constitution  says  that  our  salaries  shall  not  be  reduced 
during-  our  continuance  in  office,  and  now  you  ask  us  to 
participate  in  a  reduction,  which  is  a  clear  violation  of  the 
Constitution  which  I  have  sworn  to  support.  I  never  did 
and  I  never  will  knowingly  commit  perjury.'' 

But  they  had  Shields  and  myself  tight;  for  all  that 
we  did  not  decline  the  election  on  that  account,  but  were 
elected  and  held  our  offices  two  years  at  the  reduced  salary. 
Let  it  be  remembered  that  we  had  to  go  around  our  circuits 
twice  each  year  and  attend  the  Supreme  Court  in  the 
Avinter,  pay  all  our  own  expenses,  and  even  our  own  postage 
on  official  business,  without  any  perquisites,  unless  we  might 
occasionally  make  a  dollar  by  performing  a  marriage  cer- 
emony, or  a  quarter  for  taking  an  acknowledgment  of  a  deed 
or  swearing  somebody  to  an  affidavit,  which,  altogether, 
never  amounted  to  ten  dollars  a  year. 

At  the  next  session  of  the  General  Assembly  a  law  was 
passed  raising  our  salaries  to  the  same  amount  received  by 
the  other  judges,  but  they  never  made  up  the  thousand  dol- 
lars which  we  received  less  than  the  others  during  the  two 
years. 

I  recollect  that  once,  in  the  conference  room,  he  and  I 
differed  from  all  the  other  judges  upon  a  case  which  went 
up  from  his  circuit,  involving  questions  growing  out  of 
what  was  called  squatter,  or  claim  titles  to  ])ublic  lands,  a 
tenure  by  which  a  very  large  portion  of  the  land  in  our  cir- 
cuits was  held,  and  was  scarcely  known  in  other  parts  of 
the  State.  Our  predecessors  on  the  circuit  bench  had,  with 
the  sanction  of  the  bar,  established  a  sort  of  common  law 
for  the  government  of  this  sort  of  titles,  which  was  recog- 
nized and  acted  upon  by  all,  without  a  thought  that  these 
rules  could  ever  be  disturbed  or  questioned;  but  some  new 
lawyer  had  lately  come  in,  who  could  not  find  anything  in 
Blackstone  or  in  our  slatujte  to  support  these  rules,  and  took 


176  EATiLY  BENCH  AND  BAR  OF  ILLINOIS. 

his  case  to  the  Supreme  Court,  and  we  were  astonished  to 
see  that  the  other  members  of  the  court  were  inclined  to 
overturn  our  local  law,  as  it  had  been  administered  with- 
out question  for  so  many  years,  which  would  disturb  a  great 
many  titles  in  our  circuits  that  were  regarded  as  well 
settled,  and  were  bought  and  sold  every  day  without  ques- 
tion. Without  coming  to  a  final  decision,  however,  I  was 
permitted  to  take  the  record  and  write  out  our  views  and 
present  them  at  a  subsequent  conference.  Brown's  room 
Avas  opposite  to  mine  in  the  hall  at  the  hotel,  and  at  a  con- 
ference between  us  we  ai^Teed  that  the  whole  case  was  re- 
solved  into  two  principal  questions,  and  that  if  thcv  would 
agree  with  us  on  the  first  question,  we  thought  that  we 
could  see  that  they  Avould  bo  compelled  [to  concur  with  us 
on  the  second.  So  I  took  the  record  to  my  room  and  wrote 
out  our  views  upon  the  first  question  involved,  which  I  took 
across  to  his  room  and  read  to  him,  and  he  expressed  him- 
self much  pleased  with  the  manner  in  which  I  treated  it.  I 
then  gathered  up  the  papers  and  said  I  would  go  and  write 
out  the  second  part.  "  No,  no,"  said  he,  "•  don't  write  an- 
other word  now.  Let  them  take  their  medicine  in  broken 
doses.  If  they  will  take  the  first  and  keep  it  down  they  Avill 
take  the  balance  without  making  a  wry  face."  I  readily 
perceived  the  force  of  his  suggestion,  at  least  so  far  as  pre- 
senting it  in  broken  doses  was  concerned,  although  I  think 
I  wrote  the  balance  of  the  opinion  the  same  night,  but  did 
not  attach  them  together. 

At  the  next  conference  I  read  the  first  part.  When  I 
had  done  the  chief  justice  inquired  where  was  the  balance 
of  the  opinion.  I  told  him  that  unless  what  I  had  written 
was  approved,  it  was  no  use  to  write  any  more,  so  I  had 
presented  this  for  their  consideration,  and  if  it  was  adopted 
I  would  then  see  what  1  could  do  with  the  balance  of  the 
case.  It  was  considered  and  approved  unanimously,  and  at 
a  subsequent  conference  I  read  the  balance  of  the  opinion, 
and  the  final  result  was  that  tliey  took  the  last  part  of  the 
dose  more  complacently  than  the  first,  so  that  v^c  finally 


THE  CONFERENCE  ROOM.  177 

obtained  the  sanction  of  the  Supreme  Court  for  our  local 
common  law  governing  claim  titles. 

I  often  heard  a  story,  not  long  after  I  went  upon  the 
bench,  in  which  it  was  stated  that  Chief  Justice  Wilson 
asked  his  associates  severally  for  their  opinions  on  the  case 
which  was  under  consideration,  and  that  when  he  came  to 
Brown  he  was  answered  that  he  was  not  quite  prepared  to 
give  his  opinion  yet,  he  wanted  to  consider  the  case  further; 
and  that  Wilson  replied,  "Oh,  nonsense.  Brown,  you  may 
just  as  well  guess-  on  the  case  now  as  any  time."  But  that 
never  occurred  while  I  was  in  the  conference  room,  and  I 
am  sure  I  never  heard  it  related  by  any  one  of  the  judges 
as  having  occurred;  and  I  have  no  doubt  the  story  was  made 
up  by  some  one  who  supposed  it  to  be  characteristic. 

I  never  saw  Judge  Brown  upon  the  circuit  bench,  but 
always  understood  that  he  got  along  very  pleasantly  with 
the  bar  and  administered  justice  as  satisfactorily  as  any  of 
the  other  judges  holding  Circuit  Courts.  He  evidently  ap- 
preciated that  while  he  could  plainly  see  how  a  question 
should  be  decided  he  might  not  readily  be  able  to  assign  the 
best  reason  for  that  decision,  and  so  he  prudently  declined 
to  assign  any  reasons.  Probably  all  of  us  would  have  got 
along  better  at  times  had  we  adopted  the  same  wise  course. 

Mr.  B.  C.  Cook  relates  a  story,  that  he  tried  a  cause  before 
Judge  Brown  at  Dixon,  in  Lee  county,  and  that  after  he  had 
obtained  a  verdict  to  which  he  thought  he  was  fairly  entitled, 
a  motion  for  a  new  trial  was  made,  which  he  thought  was 
so  plainly  unnecessary  that  he  declined  to  argue.  The 
judge,  after  looking  solemn  and  wise  for  a  few  minutes, 
said,  "  Well,  Mr.  Cook,  let  us  give  him  a  new  trial.  Maybe 
he  will  be  better  satisfied  next  time." 

Perhaps  I  have  said  enough  to  give  a  fair  idea  of  my  opin- 
ion of  the  peculiarities  and  abilities  of  Judire  Thomas  C. 
Brown,  and  will  conclude  by  saying  that  I  thinlc  he  was  a 
man  of  very  considerable  ability  and  a  much  better  judge 
than  he  usually  has  the  credit  of  beinff. 

I  have  been  looking  over  some  of  the  earlier  volumes  of 
13 


]  78  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

our  reports,  and  am  thereby  reminded  of  events  which 
occurred  from  forty-five  to  twenty-five  years  ago.  Thi.s 
has  afforded  me  great  satisfaction.  It  called  to  mind  inci- 
dents long  since  forgotten,  which  occurred  in  early  life  as 
connected  with  the  duties  and  res])onsibilities  which  then 
devolved  upon  me,  and  of  associations,  both  personal  and 
official,  many  of  which,  but  for  such  reminder,  might  never 
have  again  been  thought  of.  I  will  repeat  that  my  personal 
and  official  associations  were  of  the  most  pleasing  and  har- 
monious character;  still  a  sense  of  sadness  creeps  over  me, 
when  I  remember  what  a  large  proportion  of  those  with 
whom  I  then  associated  in  official  and  professional  life,  have 
gone  before  me.  I  Avill  particularize  some  of  those  events 
which  are  called  to  mind  by  those  old  reports. 

I  have  in  a  former  number  of  this  series  referred  to  the 
case  of  BallancQ  v.  Underbill,  3  Scam.  453,  as  the  first  record 
which  was  assigned  to  me  to  prepare  the  opinion  of  the 
court;  but  I  had  before  that,  without  the  asking,  in  the  case 
of  Camden  v.  McCoy,  3  Scam.  447,  delivered  a  dissenting 
opinion.  Douglass  had  prepared  an  opinion  in  that  case,  to 
which  all  the  jndges  agreed  except  myself.  ISTot  supposing 
that  it  would  be  read  the  next  morning  from  his  place  on 
the  bench,  and  desiring  to  present  my  views  with  consider- 
able care,  I  had  not  prepared  my  dissenting  opinion,  as  the 
opinions  were  always  recorded  as  soon  as  possible  after  their 
delivery,  and  the  record  read  by  the  clerlv  from  the  record 
book  the  next  morning.  So  soon  as  Douglass  had  closed  read- 
ing the  opinion  of  the  court,  I  declared  my  dissent  from  it,  and 
proceeded  to  state,  orally,  the  reasons  for  my  disagreement 
with  the  other  members  of  tlie  court.  So  soon  as  the  court 
adjourned  for  noon  I  was  surrounded  by  a  considerable  num- 
ber of  the  bar,  who  urged  me  in  the  strongest  terms  to  write 
out  my  dissenting  opinion  and  place  it  upon  the  records,  for 
they  thought  that  I  was  certainly  right  and  would  some 
time  be  sustained  by  the  court  and  my  opinion  be  made  a 
rule  of  the  commercial  law  of  this  State.  I  did  write  out 
ni}^  dissenting  opinion  that  night,  and  handed  it  to  the  clerk 


THE  CONFERENCE  ROOM.  179 

in  the  morning,  who  had  left  a  blank  in  his  record  following 
the  principal  opinion,  in  which  the  dissenting  opinion  was 
recorded.  I  do  not  remember  whether  the  same  c^uestion 
again  arose  while  I  was  on  the  bench,  or  if  it  has  arisen  since; 
I  can  not  say  what  has  been  the  course  of  decision  upon  it. 
1  now  see  that  in  my  dissenting  opinion  I  held  that  if  a  note 
of  hand  is  presented  by  the  payee,  without  indorsement  by 
him,  with  the  name  of  another  written  on  the  back,  without 
any  evidence  to  show  when  that  name  was  written,  or  for 
what  purpose,  that  the  presumption  of  law  is  that  it  was 
written  there  at  the  time  of  tlie  execution  of  the  note,  and 
that  his  obligation  was  not  that  of  an  indorser,  but  that  he 
became  a  guarantor,  and  was  in  fact  a  joint  maker  of  the 
note,  and  might  be  sued  as  such  jointly  Avith  the  j)arty 
whose  name  was  written  on  the  face  of  the  note;  that  the 
consideration  for  which  the  note  was  given  was  a  sufficient 
consideration  for  the  guarantee;  that  all  the  acts  done  at 
that  time  constituted  but  one  transaction;  that  the  obliga- 
tions were  simultaneous,  alike  and  joint,  and  that  they  might 
be  enforced  in  one  action  against  both,  and  that  the  creditor 
need  not  bring  a  multiplicity  of  actions  to  enforce  his  rights. 
Then,  for  the  first  time,  was  my  voice  heard  from  that  bench. 
It  was  next  heard  when  I  read  the  opinion  of  the  court  in 
the  case  of  Ballance  v.  Underhill,  in  which  it  was  held  that 
a  defendant  in  a  suit  in  chancery  could  not  be  decreed  affirm- 
ative relief  upon  statements  made  in  his  answer,  but  that  he 
must  file  a  cross-bill  to  entitle  him  to  such  relief;  and  I  had 
a  pretty  hard  struggle  to  get  that  decision  adopted.  Indeed, 
I  confess  that  I  then  thought  that  I  was  looked  upon  as 
too  much  of  a  boy  to  entitle  my  opinions  of  tlie  law  to  be 
of  much  weight  or  influence. 

At  the  same  term  of  the  court  in  the  case  of  Updike  v. 
Armstrong,  I  wrote  the  opinion  of  the  court  reversing  a 
judgment  which  I  had  rendered  in  the  Circuit  Court. 

As  I  was  defeated  in  the  election  by  the  General  Assembly, 
which  took  phice  during  my  first  term  of  the  court,  my 
commission  would  expire  at  the  close  of   that  session.     I 


180       EAKLY  BENCH  AND  BAR  OF  ILLINOIS. 

supposed  that  I  should  then  retire  from  the  bench  forever. 
Before  the  close  of  the  term  the  case  of  Dovle  v.  Teas,  4th 
Scam.  202,  had  been  argued  and  submitted  and  considered 
in  conference  at  several  sessions,  in  which  I  took  a  pretty 
active  part,  but  no  final  agreement  had  been  arrived  at.  I 
Avas  requested  by  the  chief  justice,  with  the  approval  of  all 
the  other  membars  of  the  court,  to  take  the  record  and 
write  an  opinion  during  the  vacation,  which,  if  agreed  to, 
should  be  read  by  some  member  of  the  court  at  the  next 
term.  I  confess  that  this  request  was  gratifying  to  me,  as 
it  convinced  me  that  my  views  were  entitled,  at  least,  to 
respectful  consideration,  and  especially  on  questions  of 
chancery  law,  which  was  further  evidenced  by  the  fact  that 
most  of  the  chancery  records  had  been  given  to  me  after  the 
case  of  Ballance  v.  TJnderhilL  Of  course  I  took  the  record 
under  the  peculiar  circumstances  with  great  satisfaction, 
and  resolved  to  do  my  very  best  in  preparing  what  I  sup- 
posed to  be  my  last  judicial  opinion,  and  I  did  expend  a 
great  deal  of  labor  upon  that  opinion,  and  especially  upon 
the  question  as  to  what  notice  shall  affect  a  subsequent  pur- 
chaser of  real  estate.  By  a  careful  investigation  and  com- 
parisons, I  discovered  what  I  had  never  noticed  before,  that 
Ijoth  Kent  and  Story  alike,  had  laid  down  radically  different 
rules  to  govern  this  question  of  notice,  under  precisely  the 
same  circumstances,  and  after  reviewing  a  large  number  of 
decisions,  both  in  England  and  America,  I  found  it  impos- 
sible to  deduce  any  satisfactory  rule  from  them,  and  the  rule 
which  I  did  finally  formulate  maybe  as  difficult  in  its  appli- 
cation to  particular  cases  as  those  which  had  been  laid  down 
by  others;  however,  I  sought  to  so  frame  it  that  it  might  be 
applied  to  all  cases^  though  the  facts  proved  might  be  ever 
so  variant. 


THE  CONFERENCE  ROOM.  181 


IV. 


SALARIES   OF  JUDGES HISTORY   OF  THE   COURT  FROil  THE  BEGIX- 

NIXG HARDSHIPS  OF  TRAVEL  IIST  ATTENDING  COURT. 

The  next  case  to  which  I  am  iKclined  to  refer  is  that  of 
Sceley  v.  Peters,  5  Gihii.  130.  The  only  question  arising  in 
that  case  was  whether  the  common  law  of  Eno-land,  which 
required  that  the  owner  of  domestic  animals  should  restrain 
them  from  going  on  uninclosed  premises  of  another,  was  in 
force  in  this  State  or  not.  The  case  was  tried  before  me  at 
the  Peoria  Circuit  in  1S17.  I  had  previously  bestowed 
great  labor  and  care  in  examining  the  question  and  thouglit 
I  understood  it  thoroughly,  and  upon  the  trial  I  instructed 
the  jury  that  the  common  law  of  England  prevailed  here, 
and  that  the  owners  of  stock  were  liable  for  damao-es  if 
permitted  to  stray  on  the  uninclosed  lands  of  another. 

After  the  case  had  been  argued  and  submitted,  and  we 
retired  to  the  conference  room  with  the  record,  we  all  ex- 
pressed our  opinions  of  the  case.  No  assignment  of  the 
record  was  made  to  any  one  to  write  the  opinion,  nor  was 
an}'^  vote  taken  as  to  what  the  decision  should  be,  but  I  at 
least  supposed  that  it  would  be  considered  at  a  future  con- 
ference, when  each  member  of  the  court  would  have  an 
opportunity  of  assigning  his  reasons  for  the  conclusion  at 
which  he  arrived;  and  so  the  case  was  passed,  and  the  con- 
ference proceeded  to  consider  other  cases. 

For  several  days  this  case  was  not  again  referred  to. 
Finally  an  opinion  was  read  reversing  the  judgment,  Avhich 
was  approved  by  a  majority  of  the  court,  holding  that 
the  common  law  had  been  repealed  by  the  first  section 
of  the  law  of  1819,  and  also  that  it  was  not  applicable  to 
our  condition  in  life,  as  existing  here,  and  that  our  people 
had  always  supposed  that  the  law  required  every  man  to 
inclose  his  own  premises  to  keep  off  the  stock  of  others 
roaming  at  large. 

To  say  that  I  felt  chagrined  and  mortified  at  being  thus 


182  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

ignored  by  the  otlier  members  of  the  court,  expresses  my 
feelings  mildly.  The  caSe  had  been  considered  by  them 
outside  the  conference,  and  it  was  manifest  that  they  had 
studiously  avoided  any  intercourse  with  me  on  the  subject. 
I  was  a  meml:)er  of  the  court  with  as  many  rights  and  du- 
ties in  connection  with  it  as  either  of  the  other  members, 
and  to  practically  expel  me  from  it  bespoke  some  cogent 
reason,  which  they  did  not  care  to  explain  to  me.  To 
assume  that  I  Avould  unduly  endeavor  to  secure  a  decision 
affirming  my  ruling  on  the  circuit,  as  might  naturally  be  im- 
plied from  being  thus  excluded  from  the  conference  on  the 
case,  I  felt  sure  v/as  not  justified  by  my  past  action  as  a 
member  of  the  court.  They  certainly  knew  that  I  had 
never  shown  any  sensitiveness  at  having  my  own  decisions 
reversed,  but  had  always  shown  an  ardent  desire  to  obtain 
correct  decisions,  whether  they  might  affirm  or  reverse  my 
circuit  rulings.  The  case  of  Kimball  v.  Cook,  1  Giim.  423, 
had  been  heard  before  the  nine  judges,  and  while  I  had 
heard  the  argument  I  declined  to  vote  upon  it,  because  I 
was  in  great  doubt  whether  my  decision  upon  the  circuit 
was  right  or  not,  and  I  saw  it  would  require  a  most  labori- 
ous examination  of  the  statute  to  satisfy  myself  on  that 
])ointT;  but  when  the  vote  was  taken  it  was  found  that  four 
members  of  the  court  voted  for  affirming  and  four  for  revers- 
ing. While  that  would  affirm  my  judgment  by  an  equal 
division  of  the  court,  I  was  by  no  means  satisfied  that  the 
decision  would  be  right,  and  so  consented  to  take  the 
record  and  write  out  an  opinion  which  would  decide  the 
case,  whichever  way  I  might  conclude  the  law  to  be.  I  did 
so,  and  after  a  very  careful  examination  of  the  statute  I 
was  entirely  satisfied  that  I  had  committed  an  error  in  the 
court  below,  and  so  wrote  out  an  opinion  reversing  my  own 
judgment,  and  when  I  read  it  in  conference  three  of  the  four 
who  had  voted  for  affirmance  appeared  to  be  convinced 
with  me  that  the  judgment  should  be  reversed,  and  so  it 
was  done,  and  my  opinion  was  adopted  as  the  opinion  of 


THE  CONFERENCE  EOOM.  183 

the  court,  excepting  Judge  Young,  who  wrote  a  dissenting 
opinion. 

Indeed,  I  thought  ni}^  associates  should  have  appreciated 
that  my  only  desire  was  to  have  cases  decided  according  to 
the  law,  without  the  least  regard  as  to  whether  I,  or  some 
other  judge,  had  made  the  decision  in  the  lower  court,  which 
was  under  review  at  the  time.  I  know  I  was  just  as  anxious 
to  reverse  mj'"  own  decisions,  when  satisfied  of  the  error,  as 
if  the}^  had  been  made  by  another  judge.  My  only  desire, 
and  my  araliition,  was  to  lay  down  the  law  in  the  Supreme 
Court  so  that  it  would  stand  the  test  of  time  and  scrutiny, 
rather  than  to  perpetuate  an  error  upon  the  records  of  the 
court  from  a  false  pride  of  opinion,  which  would  afterward 
be  found  to  be  erroneous.  I  felt  that  lasting  fame  could 
only  be  secured  by  right  decisions  at  the  last,  and  that  by 
affirming  an  error  I  could  only  weaken  what  reputation  I 
might  otherwise  acquire.  It  is  no  reflection  upon  the 
capacity  or  integrity  of  a  judge  that  his  decisions  at 
nisi  i^rius  should  be  reversed  on  appeal.  There  he  must 
decide  cases  upon  first  impression,  without  that  thorough 
examination  which  would  enable  him  to  form  a  matured 
judgment.  Chancellor  Wahvorth  was  taken  from  the  cir- 
cuit bench  and  made  chancellor  of  the  State  of  Xew  York, 
and  yet,  whoever  will  have  the  curiosity  to  examine,  will 
see  that  proportionally  more  of  his  decisions  as  circuit  judge 
were  reversed,  than  were  those  of  an}'-  other  judge  who  ever 
sat  upon,  a  circuit  bench  of  that  State;  still  his  great  repu- 
tation as  a  jurist  was  never  impaired  by  that  circumstance. 

If  I  know  myself,  I  know  that  I  never  had  the  least  sensi- 
bility about  having  my  judgments  rendered  on  the  circuit 
reversed  in  the  Supreme  Court,  and  I  never  admitted  the 
idea  that  it  was  for  that  reason  that  I  was  excluded  from 
the  conference  in  the  consideration  of  this  case.  Perhaps  it 
was  because  the  other  judges  did  not  care  to  bear  the  inflic- 
tion of  hearing  me  argue  the  question  in  conference,  which 
had  been  so  well  argued  at  the  bar,  and  upon  which  their 
minds  were  conclusively  made  up;  but  for  all  that  I  did  feel 


1(S4  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

it  keenly,  and  at  once  resolved  to  write  a  dissenting  opinion, 
in  which  I  thought  I  could  demonstrate  that  the  decision 
had  not  been  the  law  before,  although  it  must  become  the 
law  afterward,  at  least  for  a  time,  and  I  did  my  best  to  do 
so.  I  certainly  shovred  that  the  first  section  of  the  act  of 
lbl9,  which  was  strongly  relied  upon,  had  been  repealed  and 
never  afterward  re-enacted;  that  many  decisions  of  as 
respectable  courts  as  any  in  the  Union,  and  exactly  in  point, 
sustained  a  ruling  of  the  court  beloAV,  and  that  whether  it 
was  contrary  to  the  genius  of  our  institutions,  and  of  the 
habits  and  notions  of  our  people,  were  questions  for  the 
Legislature,  and  not  for  the  court  to  determine.  I  under- 
stand that  the  Legislature  has  since  that  time  enacted  several 
laws  modif3^ing  or  changing  the  rule  laid  down  by  the  court 
in  that  case,  but  I  have  not  taken  the  trouble  to  examine 
them. 

In  looking  over  the  report  of  that  case  after  the  lapse  of 
so  many  j^ears,  I  see  that  my  dissenting  opinion  was  unpar- 
donably  long,  and  that  some  of  its  expressions  were  more 
pungent  than  I  wish  they  had  been,  but  I  am  still  satisfied 
that  I  was  right  in  my  conclusions  as  to  what  the  law  was. 
It  is  evident  that  when  I  wrote  that  opinion,  I  could  not 
but  feel  the  sting  which  had  been  provoked  by  what  seemed 
to  me  to  be  a  discourtesy;  in  this  I  am  now  satisfied  that  I 
was  wrong,  for  I  am  entirely  convinced  that  no  discourtesy 
was  intended.  I  am  happy  now  to  remember  that  the  event 
never  produced  a  shadow  of  coolness  or  ill-feeling  between 
us;  the  same  harmony  and  personal  friendship  always  after- 
ward existed  as  it  had  done  before. 


V. 


ANECDOTES    OF    LINCOLN    AND    OTHERS — STOUIES    OF    CELEBEATED 

TRIALS. 

When  Judge  Breese  took  his  seat  upon  the  bench  of  the 
Supreme  Court  for  the  second  time,  the  court  consisted  of 
Breese,  Skinner  and  myself.     In  the  course  of  conversation 


OMAS    C.    SKINNER. 


THE  CONFERENCE  ROO:.I.  1S5 

Ave  discovered  that  we  all  three  came  from  Oneida  county, 
X.  Y.,  and  this  remarkable  incident  soon  became  known  to 
the  bar,  and  was  tlie  subject  of  comment  among  them.  The 
conference  room  at  Springfield  adjoined  that  of  the  library, 
where  the  lawyers  usually  assembled  in  the  evenings,  exam- 
ining their  cases  and  making  up  their  In-iefs,  while  we  were 
in  conference  in  the  adjoining  room.  Generally  Mr.  Lincoln 
was  present  in  the  library  with  the  other  members  of  the 
bar  at  work  upon  his  cases.  AYith  rare  exceptions  not  a 
Avord  could  be  heard  from  the  lil^rary  room  till  about  nine 
o'clock  in  the  evening,  when  a  boisterous  laughter  would 
frequently  break  out  there,  which  put  an  end  to  their  Avork 
for  tliat  eA'ening,  and  had  a  strong  tendency  to  suspend  work 
in  the  conference  room.  We  kncAv  at  once  that  Mr.  Lincoln 
Avas  telling  some  neAA'  story,  for  which  he  Avas  so  celebrated, 
and  the  temptation,  to  me  at  least,  was  A^ery  strong  to  go 
out  and  hear  it.  This  occurred  very  early  in  the  first  term, 
Avhich  v.'e  held  in  Springfield,  after  Breese  had  joined  us  at 
Mount  Yernon.  When  I  passed  into  the  library  room  Mr. 
Lincoln,  AA'ho  was  seated  on  one  of  the  tables,  his  feet  hang- 
ing doAvn  nearly  to  the  floor,  said :  '*'  Judge  Caton,  I  want 
to  know  if  it  is  true,  as  has  been  stated,  that  all  three  of  you 
judges  came  from  Oneida  county,  Xew  York?"  I  told  him 
I  belie A'ed  it  AA^as  so,  AA'hatever  that  might  indicate.  "  0?ili/ 
t/ris,''^  he  said,  "  I  could  never  understand  before  ichy  this  vx(s 
a  One-i-dea  courty  Of  course  this  produced  a  laugh  so  loud 
and  universal  that  the  other  judges  had  to  come  out  and 
see  what  was  the  matter,  and  Avhen  it  AA'^as  explained  they 
joined  in  the  merriment  as  cordially  as  the  rest  of  us. 

I  must  say  here  that  I  was  usuall}'  glad  to  learn  in  that 
way  that  Lincoln  was  in  the  librar}"  room,  thus  diverting 
the  attention  of  the  other  members  of  the  bar  from  the 
drudgery  of  the  work  in  which  they  had  been  engaged  by 
telling  some  amusing  story;  both  before  and  after  that  time, 
and  in  the  conference  room,  we  were  not  loath  to  have  our 
attention  diverted  by  the  same  means,  at  least  for  a  time. 


1S6  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Beyond  comparison,  the  most  dilTiciilt  task  I  ever  assumed 
at  the  request  of  my  associates  Avas  to  write  an  opinion 
reversing  the  judgment  in  the  case  of  The  People  v.  Thur- 
ber,  13  111.  554,  but  it  just  had  to  be  done.  It  would  have 
been  a  very  easy  task  to  write  an  opinion  affirming  the 
judgment,  but  that  would  have  entailed  a  public  calamity, 
which  could  not  be  thought  of  for  a  moment.  Tliat  was 
one  of  those  cases  where  consequences  had  to  be  taken  into 
consideration  and  given  an  absolutely  controlling  influence, 
and  my  duty  was  to  hunt  up  shreds  and  scraps  of  statutes 
to  sustain  the  decision,  and  relying  as  little  as  possible  upon 
the  consequences  of  an  affirmance,  which,  after  all,  consti- 
tuted really  the  controlling  consideration. 

To  have  affirmed  that  judgment  would  have  been  to  sus- 
pend the  operations  of  all  our  election  laws  and  held  them 
suspended  until  a  statute  could  have  been  passed  to  cure  an 
omission  in  an  existing  statute. 

In  obedience  to  the  Constitution  of  1S48  the  first  General 
Assembly  which  assembled  under  that  constitution,  passed 
a  law  abolishing  the  Court  of  County  Commissioners  and 
the  office  of  clerk  of  that  court,  and  creating  a  County 
Court  with  a  clerk,  and  conferring  upon  it  judicial  powers 
which  had  never  been  exercised  by  the  County  Commission- 
ers' Court,  as  well  as  the  powers  which  had  previously 
existed  in  the  County  Commissioners'  Court,  and  of  course, 
it  followed  that  the  clerk  of  the  new  court  would  exercise 
the  powers  devolving  upon  him  in  relation  to  the  jurisdic- 
tion conferred  upon  the  court ;  but  the  previous  laws  had 
required  the  clerk  of  the  County  Commissioners'  Court  to 
perform  many  ex  officio  duties  in  the  execution  of  many 
other  general  laws  which  had  no  connection  whatever  with 
the  jurisdiction  of  that  court ;  and  without  the  performance 
of  these  duties  by  some  one  authorized  by  law  to  perform 
them,  their  operation  must  be  absolutely  suspended,  and  yet 
the  Legislature  had  omitted  to  pass  any  statute  devolving 
these  duties  upon  the  clerk  of  the  new  County  Court,  or 
u]ion  any  other  person  or  officer,  and  my  task  was  to  find 


THE  CONFERENCE  ROOM.  187 

some  authority  for  holding  that  these  ex  ojjicio  duties  liad 
been  kiwfully  exercised  by  the  clerk  of  the  new  County 
Court.  I  repeat  that  this  had  to  be  done  or  else  the  wlieels 
of  government,  to  a  vital  extent  at  least,  must  be  sus- 
pended. 

I  ransacked  the  statutes  thorouo^hlv,  and  found  in  dif- 
ferent  acts  many  provisions  and  expressions  which  showed 
clearly  that  the  Legislature  supposed  and  believed  that  ex- 
isting laws  authorized  the  clerk  of  the  new  court  to  perform 
all  of  these  ex  officio  duties  which  had  been  imposed  upon 
the  clerk  of  tlie  old  court,  but  that  was  all.  From  these 
expressions  I  inferred  that  it  was  the  will  of  the  Legislature 
that  these  duties  should  be  performed  by  the  clerk  of  the 
new  court;  that  although  that  will  was  not  expressed  in 
any  separate  and  affirmative  statute,  it  was  clearly  manifest 
from  the  language  which  the  Legislature  had  used  in 
several  different  acts,  and  that  the  will  of  the  Legislature 
clearly  expressed  in  several  acts,  when  taken  together,  con- 
stituted the  law  of  the  case  as  much  as  if  that  will  had  been 
expressed  in  one  distinct  statute. 

Xow,  this  was  the  best  I  could  do  in  support  of  a  decision 
which  had  to  be  made,  and  as  my  associates  could  suggest 
nothing  better  it  was  made  to  pass,  and  the  government 
went  on  quieth^  as  before. 

Strange  to  say,  nine  years  later  we  found  ourselves  con- 
fronted with  a  similar  difficulty  in  the  case  of  AVood  v. 
Blanchard,  19  111.  38,  and  it  is  a  little  singular  that  two 
such  hard  questions  as  these  should  be  presented  to  us  for 
decision,  v.diile,  I  venture  to  say,  nothing  analogous  to  them 
had  ever  been  presented  to  any  other  court  for  adjudication. 
In  this  case  it  appeared  that  the  old  constitution  created 
the  office  of  coroner,  the  mode  of  whose  election  and  duties 
were  subsequently  prescribed  by  acts  of  the  Legislature. 
By  the  adoption  of  the  Constitution  of  IS-IS,  the  old  con- 
stitution was  superseded,  and,  in  fact,  repealed,  and  so  was 
the  office  of  coroner  abolished,  and  not  re-created  in  the 
new    constitution,   nor  had   any   subsequent    act    of    the 


188       EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

Legislature  created  that  office;  and  yet,  for  nine  years,  peo- 
ple had  been  electing  coronei's  who  had  been  discharging 
the  duties  of  that  office;  and  the  only  question  presented 
was  whether  there  was  such  an  office,  and  could  be  such  an 
officer,  in  this  State.  To  have  decided  otherwise  would 
have  created  incalculable  mischief.  Many  titles  depended 
upon  the  validity  of  their  actions,  especially  when  acting  as 
sheriffs,  and  the  necessity  for  affirming  the  decision  in  the 
case  w^as  scarcely  less  imperative  than  was  that  of  reversing 
the  decision  in  the  other;  certainly  no  affirmative  law  had 
been  passed  for  the  purpose  of  creating  such  an  office,  but 
it  was  equally  certain  that  several  laws  had  been  passed, 
showing  that  the  law-making  power  assumed  that  there  was 
such  an  office  and  had  legislated  upon  that  assumption. 
Indeed,  the  convention  which  had  abolished  the  office  had 
prescribed  in  its  schedule  certain  duties,  which  should  be 
performed  by  the  coroner  after  its  adoption.  By  a  law 
duly  enacted  after  the  adoption  of  the  new  constitution  a 
provision  was  made  for  the  election  of  a  coroner  whenever 
a  vacancy  should  occur.  iS^ow,  Avhile  it  Avas  admitted  that 
no  law  had  been  passed  expressly  creating  the  office  of 
coroner;  this  law  had  been  passed  providing  for  his  election 
and  prescribing  his  duties,  in  some  cases  at  least.  This,  we 
held,  clearly  showed  that  it  was  the  intention  of  the  laAv- 
making  power  that  there  should  be  such  an  officer  as  a 
coroner,  and  consequently  it  must  have  been  equall}^  the  in- 
tention of  the  laAv-giver  that  there  should  be  such  an  office, 
which  might  be  filled  and  held  by  such  an  officer. 

The  rule  established  by  these  anomalous  cases  ma}^  be 
thus  formulated :  the  Avill  of  the  law-maker  is  tlie  law,  Avhen 
expressed  in  a  constitutional  Avay,  and  we  may  look  through 
all  its  statutes  to  find  a  legitimate  expression  of  that  will, 
and  Avhen  found  it  is  the  duty  of  the  courts  to  enforce  it. 

I  say  this  is  the  rule  fairl}^  deducible  from  the  decisions 
of  these  tAvo  cases,  and  I  still  think  it  is  in  perfect  harmony 
Avith  the  long  and  Avell  settled  rules  for  the  construction  of 
statutes,  and  that  it  fairly  justified  those  decisions,  though  I 


THE  CONFERENCE  ROOM.  189 

confess  that  in  writing  that  opinion  I  felt  as  if  acting  under 
a  sort  of  constraint  imposed  by  an  absolute  necessity,  Avhich 
I  hav^e  never  felt  when  deciding  any  other  case.  I  do  not 
think  it  probable  that  any  other  court  Avill  have  occasion  to 
use  them  as  precedents  for  the  want  of  cases  parallel  to 
these. 

The  dissentient  might  formulate  another  rule,  perhaps 
scarcely  less  consistent  with  the  general  rules  of  the  law  for 
the  construction  of  statutes,  which  may  be  stated  thus  :  if 
the  law-maker  actually  believes  or  supposes  the  law  to  be  so 
and  so,  and  expresses  that  belief  in  a  constitutional  way,  that 
does  not  make  it  the  law,  for  he  does  not  thereby  affirma- 
tively declare  that  it  shall  be  the  law.  Or  he  might  state  it 
thus :  if  the  law-maker  misapprehends  the  law,  no  matter  in 
what  form  that  misa]3preheusion  may  be  expressed,  that 
does  not  change  the  law. 

In  this  respect  the  misappreliension  of  the  legislative 
department  as  to  what  the  law  is,  has  a  different  effect  from 
the  mistakes  of  the  judicial  department;  for  if  the  Supreme 
Court  mistakes  the  law,  its  decision  made  under  such  mis- 
apprehension actually  changes  the  law,  at  least  for  the  time 
being. 

The  case  of  Baxter  v.  The  People,  3  Gil.  368,  presented 
some  very  important  questions  arising  under  our  Criminal 
Code,  in  which  the  duty  was  assigned  to  me  to  write  the 
opinion  of  the  court,  the  first  of  which  was,  whether  a  de- 
cision of  the  Circuit  Court  overruling  a  motion  for  a  contin- 
uance could  be  assigned  for  error,  and  I  was  instructed  to 
hold  that  a  decision  of  such  a  motion  in  a  criminal  case  rests 
in  the  sound  discretion  of  the  court,  and  could  not  be  as- 
signed for  error;  that  the  statute  of  the  21st  of  July,  1837, 
allowing  error  to  be  assigned  on  decisions  denying  motions 
for  a  continuance,  only  ap])lied  to  civil  cases.  In  Yickers  v. 
Hill,  1  Scam.  308,  the  court  had  decided  that  the  Practice 
Act  of  1827,  Avhich  confessedly  only  applied  to  civil  cases, 
provided  that  decisions  of  motions  for  continuances  could 
not  be  assigned  for  error,  and  we  held  that  the  amendment 


190  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

to  that  act  passed  in  1837  was  only  intended  to  apply  to 
those  cases  provided  for  in  the  act  to  which  it  was  an  amend- 
ment. I  see  that  by  Sec.  63  of  the  Practice  Act  in  the 
Statutes  of  187-1  overruling  motions  for  continuance  in  crim- 
inal cases  may  be  assigned  for  error,  but  I  have  not  traced 
the  statutes  back  to  see  when  this  innovation  was  first  intro- 
duced by  the  Legislature. 

For  the  first  time  in  this  case  we  were  called  upon  to  give 
a  construction  to  the  statute  which  declares  that  accessories 
to  crimes  "  shall  be  deemed  and  considered  as  principals  and 
punished  accordingly." 

The  indictment  against  Baxter  was  for  the  murder  of  Col. 
Davenport,  as  principal.  The  evidence  showed  that  he  was 
accessory  before  the  fact,  and  the  question  was  whether  he 
should  have  been  indicted  as  accessory,  and  concluded  with 
the  avowment  that  he  thereby  became  principal,  or  whether 
the  indictment  against  him  as  principal  was  sustained  by 
the  proof  that  he  was  accessory.  After  much  consideration 
a  majority  of  the  court  determined  that  he  was  properly  in- 
dicted and  convicted  as  principal  upon  proof  that  he  was 
accessory  before  the  fact,  and  I  understand  that  that  rule 
has  been  folio Aved  ever  since  in  this  State  without  question, 
and  that  the  anarchists  were  lately  convicted  and  executed 
by  the  application  of  this  rule,  without  even  asking  the 
court  to  consider  it;  but  it  was  not  originally  adopted  with- 
out doubts  and  misgivings;  and  Mr.  Justice  Koerner,  after 
all,  dissented,  and  maintained  his  dissent  in  a  very  strong 
opinion,  holding  that  the  indictment  should  have  stated 
the  facts  of  the  case  as  they  really  existed,  so  that  the  pris- 
oner would  have  been  fully  advised  of  what  he  was  to  meet 
and  controvert  on  the  trial. 

Another  very  important  question  was  decided  in  this  case. 
The  trial  was  commenced  on  Friday  and  the  case  submitted 
to  the  jury  on  Saturday,  who  brought  in  a  verdict  on  Sun- 
day, which  was  received  and  recorded  and  sentence  of  death 
was  passed  on  that  day.  This  was  assigned  for  error  upon 
the  ground  that  Sunday  is  dies  7ion  juridicus,  and  that  the 


PINKNEY    H.    WALKER. 


THE  CONFERENCE  ROOM.  191 

court  had  no  jurisdiction  to  do  a  judicial  act  on  that  day. 
This  position  was  sustained  so  far  as  the  sentence  was  con- 
cerned, and  so  the  judgment  was  reversed,  but  we  also  held 
that  the  receiving  of  the  verdict  was  not  a  judicial  act,  and 
hence  it  was  properly  received  on  that  day. 

Then  the  question  arose  whether  the  reversal  of  the  judg- 
ment carried  with  it  a  reversal  of  all  the  anterior  ])roceed- 
ings.  Undoubtedl}^  the  weight  of  authority  in  the  English 
courts  supported  that  proposition,  and  that  the  prisoner 
should  have  been  discharged  forever  for  the  crime  of  which 
he  had  been  guilty;  but  we  thought  we  found  an  abundance 
of  authority  for  holding  that  the  reversal  of  the  judgment 
only  reversed  that  which  was  erroneous,  or,  in  fact,  void,  for 
we  held  that  the  sentence  of  death  which  was  pronounced 
on  Sunday  was  absolutel}^  void  for  the  want  of  jurisdiction 
to  do  any  judicial  act  on  that  day,  and  so  we  remanded  the 
case  to  the  Circuit  Court  with  instructions  at  its  next  terni 
to  pass  the  sentence  of  the  law  upon  the  verdict  which  had 
already  been  properh^^  received  and  recorded,  which  was 
held  to  be  a  ministerial  act  only. 

VI. 

APPOINTMENT   OF    PINCKNEY    H.  WALKEK   AS    JUDGE SKETCH    OF 

HIS    LIFE, 

During  the  December  term  of  the  court,  1856,  Judge  Skin- 
ner asked  me  if  I  was  well  acquainted  with  G-ov.  Bissell.  I 
answered  him  that  I  was  pretty  well  acquainted  with  the 
governor.  He  then  told  me  that  he  was  about  to  resign 
his  seat  upon  the  bench,  but  would  only  do  so  upon  the  con- 
dition that  Pinckney  H.  Walker  would  be  appointed  to  suc- 
ceed him,  and  that  as  the  governor  was  a  republican  and 
Judge  Walker  a  democrat,  he  might  not  be  inclined  to  make 
such  an  appointment,  and  requested  me  to  see  the  governor 
and  ascertain  if  he  would  appoint  Walker  in  case  of  such  a 
vacancy.  I  accordingly  called  upon  the  governor  and 
frankl}^  stated  Judge  Skinner's  proposition  to  him,  and  also 


192      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

told  him  that  while  I  did  not  know  Judge  Walker  person- 
ally, I  was  entirely  satisfied  that  he  was  especially  qualified 
for  a  place  on  the  supreme  bench,  and  that  he  would  dis- 
charge his  duties  there  honorably  to  the  governor  who 
should  appoint  him,  and  be  useful  to  the  public  service. 

He  replied  that  he  would  take  the  matter  into  considera- 
tion, and  would  consult  his  confidential  friends  on  the  sub- 
ject, especially  those  who  knew  Judge  "Walker  personally, 
and  that  he  would  let  me  know  later. 

Perhaps  a  week  after  this  interview  I  received  a  note 
from  the  governor  stating  that  he  was  very  favorably  im- 
pressed with  Judge  Walker  from  what  he  had  heard  con- 
cerning him,  but  that  he  would  prefer  to  have  a  personal 
interview  with  the  judge  before  coming  to  a  final  decision 
on  the  subject.  I  assured  him  that  I  would  arrange  for 
such  an  interview  as  soon  as  practicable,  and  immediately 
telegraphed  Judge  AValker  to  come  to  Springfield  at  once, 
but  did  not  explain  the  reason  for  the  request. 

Within  a  day  or  two  afterward  Judge  Walker  put  in  an 
appearance,  when  I  was  introduced  to  him  for  the  first  time, 
and  the  reason  of  my  message  was  explained  to  him;  he 
expressed  a  willingness  to  accept  the  office  should  it  be 
offered  him,  although,  at  the  June  election  following,  he 
would  have  to  submit  his  claims  to  a  vote  of  the  people  in 
a  division  which  was  largely  republican  politically. 

At  that  time  politics  cut  very  little  figure  in  judicial  elec- 
tions in  any  part  of  the  State.  But  a  year  or  two  before  I 
had  been  elected  by  a  two-thirds  vote  of  the  people  while 
two-thirds  of  the  voters  of  my  district  were  opposed  to  the 
political  party  with  which  I  affiliated;  but  in  fact,  this 
affiliation  was  more  nominal  than  otherwise.  During  all 
the  time  I  was  on  the  bench,  I  never  made  a  political  cpeech 
or  attended  a  political  meeting,  or  in  any  way  discussed 
political  questions  in  public,  or  even  in  private  to  an}^  con- 
siderable extent,  and,  indeed,  I  rarely  voted  except  on 
special  occasions. 

I  never  would  vote  for  any  candidate  simply  because  he 


THE  CONFERENCE  ROOM.  193 

"was  the  nominee  of  my  part}'",  or  unless  I  believed  him  to  be 
as  meritorious  in  ever}^  respect  as  his  opponent  of  the  op- 
posite party.  I  always  believed,  and  still  believe,  that 
politics  should  find  no  place  on  the  judicial  bench,  and  that, 
I  ahvays  feared,  would  be  the  great  danger  of  making  the 
judiciary  elective;  and  I  still  fear  that  danger  may  come  of 
it,  but  I  have  been  happy  to  observe  that  the  people  gen- 
erally seem  to  appreciate  that  danger,  if  the  professional 
politicians  do  not. 

I  am  pleased  to  say  now,  that  Judge  Walker's  eminent 
qualifications  for  the  bench  were  duly  appreciated  by  the 
people  of  his  division,  and  that  he  was  successively  elected 
ever  after,  so  long  as  he  lived,  and  that  he  died,  still  wearing 
the  ermine  untarnished. 

During  all  the  fifteen  years  that  I  sat  upon  the  bench  of 
three  judges,  all  belonged  to  the  same  political  party,  and  I 
do  not  believe  that  any  man  living  ever  even  suspected  that 
party  politics  had  the  least  influence  upon  our  judicial  de- 
cisions. During  that  time  five  or  six  cases  came  before  us, 
of  which  suspicious  persons  might  think  that  they  had  a  polit- 
ical bearing,  but  it  so  happened  that  in  all  of  these  cases  we 
decided  against  what  some  might  suppose  would  be  favorable 
to  our  political  party.     Pardon  this  digression. 

That  evening  I  went  with  Judge  Walker  to  visit  the 
governor,  and  our  visit  was  certainly  a  very  pleasant  one. 
Gov.  Bissell  was  that  sort  of  a  man  with  whom  any  gentle- 
man could  pass  an  hour  most  delightfully. 

He  was  a  gentleman  himself  in  the  highest  sense  of 
the  term.  He  was  a  man  of  very  marked  ability.  He  was 
an  excellent  lawyer  of  the  most  spotless  integrity.  He  had 
Avon  a  high  reputation  as  a  soldier  in  the  Mexican  war,  and 
was  as  sensitive  for  his  honor  as  for  the  apple  of  his  eye. 

The  next  day  the  Secretary  of  State  intimated  to  me  that 
Judge  Walker's  commission  was  made  out  and  would  be  de- 
livered so  soon  as  Judge  Skinner's  resignation  should  be 
received.     I  then  took  Judge  Skinner's  resignation  into  the 


194      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

secretary's  office  and  delivered  it  to  the  Secretary  of  State, 
and  received  Judge  Walker's  commission. 

Later  on,  in  1864,  wiien  I  felt  that  an  imperative  domestic 
duty  compelled  me  to  resign  the  high  place  which  I  then 
occupied  on  the  Supreme  Be!l%h,  I  called  upon  Governor 
Yates,  and  informed  him  that  I  had  some  thoughts  of  re- 
signing, and  asked  him  if  he  would  allow  me  to  suggest 
for  his  consideration  the  name  of  my  successor;  he  said 
he  would  be  most  happy  if  I  would  do  so,  and  I  suggested 
the  name  of  Judge  Beck  with;  after  a  few  ^ays'  consid- 
eration he  informed  me  that  he  had  considered  my  sug- 
gestion, and  conferred  with  his  confidential  friends  on  the 
subject,  and  that  he  had  made  up  his  mind  that  should  I 
determine  to  resign,  he  would  appoint  Judge  Beck  with  to 
fill  tlie  vacancy;  and  so  it  was  done. 

In  the  case  of  The  People  ex  rel.  v.  Governor  Bissell,  21 
111.  229,  an  application  was  made  to  the  Supreme  Court  for 
a  writ  of  mandamus  to  be  directed  to  the  governor,  com- 
manding him  to  issue  certain  State  bonds  to  the  relator, 
which,  as  Avas  claimed,  an  act  of  the  Legislature  required 
him  to  do;  and  thus  was  presented  the  question  when,  and 
how  far,  one  of  the  three  departments  of  the  government 
possessed  the  power  to  control  another,  and  the  record  was 
assigned  to  'me  to  write  the  opinion  of  the  court.  In  that 
opinion  I  endeavored  to  point  out,  as  best  I  could,  to  what 
extent  and  in  what  way,  under  the  constitution,  one  depart- 
ment could  control  or  influence  the  action  of  another. 
While  necessarily,  in  many  cases,  one  department  may  con- 
trol or  influence  the  action  of  another  department,  that  is 
usually,  if  not  universally,  done  indirectl}^;  as  where  the 
courts  may  decide  a  law  to  be  unconstitutional,  which  had 
been  passed  by  the  legislative  department;  while  thei  Legis- 
lature may  restrict  or  extend  the  jurisdiction  of  the  courts, 
or  the  governor  may  pardon  a  criminal  who  has  been  con- 
demned by  the  judiciary.  Such  powers  are  usually,  if  not 
always,  of  a  restraining  character  rather  than  compulsory. 

Without  this  we  expressly  disclaimed  an}"  authority  on  the 


CORYDON    I5ECKVV1TH. 


THE  CONFERENCE  ROOM.  195 

part  of  the  judiciary  to  control  or  direct  tlie  governor  as  to 
how  he  should  discharge  his  duties  as  prescribed  by  the 
constitution,  or  the  law,  or  whether  he  should  discharge 
them  at  all;  though  he  may  neglect  or  refuse  to  perform  an 
act  required  of  him  to  be  performed,  he  is  as  much  beyond 
the  reach  of  the  courts  to  compel  its  performance  as  is  the 
Legislature. 

We  had  no  more  power  to  compel  him  to  call  an  election 
which  the  law  required  him  to  do,  than  we  had  to  compel 
the  Legislature  to  enact  a  law  which  the  constitution  re- 
quired it  to  enact.  The  judiciary  may  undoubtedly  exercise 
a  restraining  power  indirectly  over  the  acts  of  the  governor, 
should  he  do  an  act  not  authorized  by  the  constitution  or 
the  laws,  by  declaring  such  act  void,  and  so  nullify  it  and 
thus  destroy  its  effect ,  as  we  would  an  act  of  the  Legisla- 
ture, which  we  might  declare  unconstitutional,  but  we  could 
not  act  directly  upon  him  by  forbidding  him  to  perform 
the  act. 

We  recognized  the  right  of  the  governor  to  call  upon  the 
judiciary  for  its  judgment  of  the  law  in  relation  to  the  per- 
formance of  duties  imposed  upon  him,  by  submitting  an 
agreed  case,  for  instance,  presenting  the  question,  in  which 
case  he  submits  himself  to  the  jurisdiction  of  the  court, 
when  the  court  will  hear  arguments  and  decide  it  as  in  other 
cases;  but  even  in  that  case,  should  he  refuse  to  conform  his 
action  to  the  decision  of  the  court,  I  do  not  conceive  that  it 
woukl  have  the  power  to  compel  him  to  submit  as  it  could 
ordinary  suitors.  I  know  of  no  case  in  which  that  question 
has  been  presented.  It  may  be  said  that  his  having  once 
submitted  to  the  jurisdiction  of  the  court — that  the  court 
having  acquired  jurisdiction  of  the  case  and  of  the  person 
in  a  mode  recognized  by  the  law,  it  may  exercise  that  juris- 
diction to  the  end,  according  to  the  general  principles  of  tlie 
law  governing  all  other  cases;  but  this,  I  apprehend,  Avould 
be  an  exception;  for  even  that  rule  must  have  its  exceptions; 
for  instance,  the  legislative  power  may  pass  a  law  depriving 


196  EAELY  BENCH  AND  BAE  OF  ILLINOIS. 

the  court  of  jurisdiction  in  a  case  jyendcnte  lite,  after  it  has 
acquired  complete  jurisdiction  of  it. 

Thus  we  see  that  there  are  a  great  variety  of  ways  in 
which  one  department  of  the  government  may  exercise  con- 
trol over  another,  but  generally  indirectly,  as  before  stated. 
This  precise  question  was  attempted  to  be  raised,  and  it 
was  argued  in  the  case  of  Webster  v.  French,  11  111.  254, 
but  it  was  evaded  rather  than  decided  in  that  case.  That 
bill  was  filed  for  a  specific  performance  of  a  contract  for  the 
sale  of  the  Quincy  House,  which  belonged  to  the  State.  An 
act  of  the  Legislature  had  directed  the  governor  to  adver- 
tise the  Quincy  House  for  sale  and  to  receive  sealed  pro- 
posals for  it  up  to  the  first  day  of  July  then  next,  and  to 
accept  the  bid  of  the  highest  responsible  bidder,  and  as 
governor  to  execute  a  deed  to  the  purchaser.  Bids  were  re- 
ceived and  the  governor  had  accepted  the  bid  of  Ash  & 
Diller  and  executed  a  conve3^ance  to  them,  thus  vesting  the 
legal  title,  and  that  bill  was  filed,  claiming  that  the  bid  of 
Ash  &  Diller  was  an  illegal  bid  and  that  the  complainants' 
bid  was  the  highest  and  best  legal  bid,  and  that  the  governor 
had  decided  that  they  were  responsible  bidders.  The  bill 
made  the  governor  and  Ash  &  Diller  and  several  other 
bidders,  parties  defendant.  It  was  demurred  to  and  the 
demurrer  was  sustained  in  the  court  below,  and  upon  this 
decision  the  case  was  brought  to  the  Supreme  Court. 

The  governor  raised  no  question  in  the  pleadings  as  to 
the  jurisdiction  of  the  court,  though  the  question  was  raised 
by  defendants'  counsel  in  the  argument  of  the  case. 

We  held,  that  excepting  as  to  the  execution  of  the  deed, 
which  had  already  been  accomplished,  all  of  the  duties  re- 
quired of  the  governor  were  merely  ministerial  and  not 
executive,  and  might  have  been  authorized  to  be  done  by 
any  other  person;  and  that  the  only  question  in  the  case  was 
that  of  property  rights  between  the  complainants  and  the 
governor's  grantees,  in  whom  the  legal  title  was  now  vested; 
we  proceeded  to  adjudicate  the  case  as  between  those 
parties,  and  evaded  the  question  as  to  what  we  could  have 


THE  CONFERENCE  ROO.M.  197 

done  to  enforce  a  decree  requiring  the  governor  to  act  in 
his  executive  capacit}',  so  that  question  remained  undecided 
and  unconsidered  until  the  case  of  the  People  ex  reL  v. 
Gov.  Bissell,  before  referred  to. 

But  there  were  several  other  very  important  questions 
presented  in  this  Quincy  House  case  for  which  we  could  find 
no  precedents  directly  in  point  to  aid  us  in  our  deliberation, 
especially  as  to  the  first;  and  that  was,  by  what  rules  of  law, 
biddings  by  sealed  proposals  should  be  governed;  that  was 
the  more  remarkable  since  vast  interests  have  in  later  times 
been  involved  in  that  class  of  bidding  by  which  public  and 
private  contracts  are  made  for  the  execution  of  public  and 
private  works,  and  the  ]3urchase  and  sale  of  properties,  both 
public  and  private.  I  say  that  we  thought  it  remarkable 
that  no  question  should  ever  have  been  raised  in  the  courts  as 
to  what  rules  shall  govern  this  class  of  transactions,  and  what 
was  necessary  to  constitute  a  legal  bid  by  sealed  proposals, 
while  the  books  are  full  of  rules  governing  sales  b}^  open 
bidding  at  public  auctions. 

In  this  case  the  complainants  bid  $21,100,  Root  &  Co. 
$500  more  than  any  bid  made  for  the  property,  while  Ash 
&  Diller  bid  $G01  over  and  above  the  highest  bid  for  the 
property.  The  governor  tacked  Eoot  &  Co.'s  $500  bid  upon 
the  specific  bid  of  the  complainants,  and  then  upon  that  he 
tacked  the  bid  of  Ash  &  Diller  of  $001,  making  a  total 
of  $22,201,  and  for  that  sum  awarded  the  purchase  to  Ash& 
Diller,  to  whom  he  executed  the  deed,  and  I  was  instructed 
to  write  an  opinion  holding  that  the  specific  bid  of  the  com- 
plainants was  the  highest  legal  bid  made  for  the  property, 
and  that  the  other  two  bids  were  illegal  and  void. 

Xo  cases  were  found  bearing  at  all  upon  the  question, 
except  that  of  Williams  v.  StcAvart,  3d  Merrivale,  471,  when 
Lord  Eldon  in  a  mere  dictum  said,  that  bids  something  like 
these  were  accepted  in  the  north  of  England,  where  they 
are  called  candlestick  bidding,  I  suppose  because  the  written 
proposals  were  placed  under  candlesticks  standing  on  the 


1 98  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

table  before  the  commissioners  receiving  them,  until  all 
were  in. 

As  this  was  the  only  case  found  which  had  the  least  re- 
semblance to  the  one  before  us,  I  was  required  to  discuss  it 
and  decide  it  on  general  principles,  which  I  did  as  well  as  I 
could.  We  held,  that  sales  by  sealed  proposals  were  but 
another  mode  of  sales  by  auction,  and  that  the  same  mode 
of  fair  dealing  and  justice  is  required  to  govern  their  con- 
duct as  is  required  in  the  conduct  of  auction  sales  where 
the  bids  are  open  and  public;  and  to  secure  this,  the  rules 
for  receiving  the  bids  in  the  latter  must  be  exactly  reversed 
in  the  former.  Where  open  bids  are  received,  every  bidder 
has  a  right  to  know  what  other  bids  are  made  against  him, 
so  that  he  may  govern  his  bid,  if  he  chooses,  by  the  judg- 
ments of  the  other  bidders;  and  for  the  seller  to  receive  a 
secret  bid,  or  one  not  known  to  the  other  bidders,  is  a  fraud 
upon  them,  for  which  the  law  will  afford  an  adequate 
remedy;  whereas  at  auctions  by  sealed  proposals  the  policy 
is  that  each  bidder  shall  act  upon  his  own  judgment,  or  at 
least  independently  of  the  judgments  of  any  other  bidder, 
and  if  the  seller  should,  before  the  bidding  is  closed,  make 
known  the  bid  of  one  bidder  to  another,  that  would  be  a 
fraud  upon  the  bidder  whose  offer  was  disclosed.  Upon 
these  principles  the  bids  of  Eoot  &  Co.,  and  of  Ash  & 
Diller,  which  were  based  upon  the  judgments  of  specific 
bidders,  were  a  fraud  in  law  upon  the  specific  bidders  and 
void;  and  that  as  the  complainants  were  the  highest  specific, 
responsible  bidders,  they  were  entitled  to  the  property  at 
their  bid,  and  that  Ash  &  Diller,  who  had  been  invested 
with  the  legal  title,  might  be  compelled  to  convey  it  to 
them  upon  their  performance  of  the  conditions  of  their  bid. 

I  understand  that  since  that  time  the  practice  has  grown 
up  and  become  quite  general  that  notices  for  secret  bids 
have  reserved  the  right  to  accept  or  reject  any  bids.  It 
seems  to  me  that  the  reservation  of  this  right  in  inviting- 
bids  may  present  questions  which  the  judiciary  will  be 
called  upon  to  decide.     How  far  this  is  consistent  with  that 


THE  CONFERENCE  ROOM.  199 

rule  of  fairness  and  integrity  which  shoiihl  govern  all  auc- 
tion sales,  may  open  a  field  for  discussion  which  will  admit 
of  a  pretty  broad  range,  and  may  at  some  time  invite  serious 
consideration,  where  statutes  do  not  intervene  to  sanction  it. 
It  seems  to  me  that  it  hardly  comports  with  that  fairness 
reciprocal  rights  and  obligations  would  seem  to  require,  if 
the  parallel  which  is  laid  down  in  this  case  between  open 
and  secret  auctions  is  to  be  maintained.  If  in  open  auctions 
the  right  were  claimed  to  accept  or  reject  all  bids  made,  it 
would  be  an  anomaly,  at  least;  and  how  far  it  would  be 
sanctioned  by  the  courts,  is  still,  I  apprehend,  undecided. 
It  seems  to  me  it  would  be  but  a  mocker}'^  of  fairness  and 
equality  of  rights,  and  why  is  it  less  so  in  case  of  secret 
auctions  ? 

In  open  auctions  the  seller  has  an  undoubted  right  to  fix 
an  upset  price,  below  which  bids  will  not  be  received;  but 
he  can  not  reserve  the  right  to  reject  any  bids  above  that 
price,  and  the  same  right  should  undoubtedly  be  allowed 
the  seller  in  secret  auctions;  but  why  he  should  be  allowed 
to  reserve  other  rights  not  allowed  in  cases  of  open  auctions 
I  do  not  clearly  comprehend.  In  either  case  unlawful  com- 
binations may  be  formed  to  defeat  that  fair  competition  be- 
tween the  bidders  which  justice  requires;  but  these  combi- 
nations are  unlawful  and  will  be  relieved  against  by  the 
courts. 

One  other  important  question  was  decided  in  this  case, 
which  has  already  been  referred  to  in  a  former  number  of 
this  series.  In  the  cases  of  Doyle  v.  Teas,  4  Scam.  457,  De 
Wolf  V.  Long,  6  Gilm.  679,  and  Wright  v.  McNeely,  11  111. 
241,  in  all  of  which  cases  I  wrote  the  opinions,  it  was  stated 
that  where  a  bill  is  filed  for  the  specific  performance  of  a 
contract,  the  purchase  money  must  be  tendered,  and  the 
tender  kept  good  by  bringing  the  money  into  court  and 
depositing  it  with  the  clerk,  and  held  subject  to  the  order  of 
the  court.  In  neither  of  these  cases  was  a  decision  of  that 
point  necessary  in  determining  the  case,  although  in  each 
the  question  was  presented  and  argued;  but  its  decision  not 


1^00  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

being  absolutely  necessary  for  the  determination  of  the  case, 
what  was  said  upon  the  subject  was  not  maturely  considered. 
In  this  case,  however,  it  was  squarely  presented  and  must 
be  met;  we  were  asked  to  reconsider  the  subject,  and  we 
did  so,  and  all  the  cases  at  hand  bearing  upon  it  were  care- 
fully examined.  Many  cases  were  found  in  which  language 
was  used  as  strong  as  I  had  used  in  the  cases  referred  to, 
holding  that  a  tender  must  be  made  and  kept  good  by  bring- 
ing the  money  into  court,  yet  in  not  one  of  them  was  that 
rule  enforced,  and  in  some  of  them  decrees  were  entered 
directly  in  violation  of  it;  in  not  one  of  the  cases  exam- 
ined was  a  contrary  rule  laid  down  in  words,  and  yet,  in  a 
great  many,  decrees  were  entered  where  tenders  had  not 
been  brought  into  court,  and  in  several  of  them  where  no 
tender  at  all  had  been  made;  in  some  of  them  further  time 
had  been  given  after  the  hearing  for  the  pajnient  of  the 
purchase  mone}''. 

The  case  of  Washburn  v.  Dewey,  lY  Ver.  92,  was  the  only 
case  found  where  the  question  of  bringing  the  money  which 
had  been  tendered,  into  court,  was  squarely  decided  in  terms, 
and  there  it  was  held  that  a  sufficient  excuse  was  shown 
for  not  having  done  so. 

Upon  what  we  conceived  to  be  abundant  authority,  I 
cheerfully  took  back  what  I  had  said  in  the  previous  cases, 
and  held  that  in  this  case  it  was  not  necessary  to  have 
brought  the  tender  into  court. 

The  rule  undoubtedly  is,  that  all  of  this  question  of  ten- 
der, and  of  keeping  the  tender  good  by  bringing  the  money 
into  court,  is  a  matter  of  discretion  with  the  chancellor. 

Let  it  be  remembered  that  matters  of  discretion  are 
always  subject  to  review  in  the  court  of  chancer}^ 

The  only  other  case  to  which  I  shall  refer  is  that  of 
Shackleford  and  wife  v.  Hall,  21  111.  212.*  In  this  a  ques- 
tion was  presented  which  had  never  before  been  considered 
in  this  country,  and  very  rarely  in  England. 

*A  bad  mistake  was  made  by  the  reporter  iii  this  case;  the  position 
occupied  by  the  aeveral  j^arties  is  inisi^laced. 


THE  CONFERENCE  ROOM.  201 

"  The  facts  of  the  case  show  that  all  of  the  devisees  of  the 
estate  in  remainder,  now  in  controversy,  were  the  heirs  at 
law  of  the  testator,  and  as  such  heirs  at  law  had  an  expecta- 
tion of  the  estate.  In  the  absence  of  the  will  each  would 
liave  been  entitled  to  his  or  her  respective  portions  of  it  ac- 
cording to  our  statute  of  descent."  The  testator  having  de- 
vised the  estate  in  his  will  precisely  as  the  statute  would 
have  cast  it  in  the  absence  of  a  will,  imposed  the  subsequent 
condition  that  if  either  of  his  children  should  marry  before 
attaining  the  age  of  twenty-one  years,  he  or  she  should  for- 
feit the  estate  thus  bequeathed.  Mrs.  Shackleford  did  not 
choose  to  wait  until  she  was  twenty-one  years  old,  and  so 
was  married  before  that  time.  Her  brother,  Henry  H. 
Hall,  then  filed  a  bill  to  declare  the  forfeiture,  which,  upon 
hearing  in  the  Circuit  Court,  was  dismissed,  and  thence  was 
brought  to  the  Supreme  Court.  Upon  the  arguments  for 
the  complainant,  the  plaintiff  in  error,  the  violation  of  the 
condition  subsequent  was  relied  upon,  and  really  that  was 
aljout  all  he  had  to  say  in  the  opening.  For  the  defense  it 
was  claimed  that  the  condition  was  in  restraint  of  marriao-e, 
and  therefore  void;  but  to  this  a  conclusive  answer  was 
given  that  a  reasonable  restraint  was  not  only  proper  but 
commendable,  and  that  a  restraint  to  the  age  of  twenty-one 
years,  or  even  a  greater  age,  was  not  unreasonable,  and 
upon  this  the  case  was  submitted.  So  soon  as  we  reached 
the  conference  room  with  the  record,  Breese  broke  out 
and  said :  "  That  brother  is  a  mean  fellow;  yes,  he's  a  great 
rascal,  and  we  must  beat  him  if  possible,  l^ow,  Caton,  how 
can  it  be  done  ? "  I  replied  that  the  law  referred  to  on  the 
argument  was  certainly  all  in  his  favor,  and  I  didn't  re- 
member any  law  to  controvert  that,  and  Judge  Walker  was 
equally  at  a  loss  to  find  any  way  to  get  around  it.  I  then 
stated  that  during  the  argument  there  seemed  to  be,  as  if  it 
were  floating  in  the  atmosphere,  some  intangible,  undefined 
idea  that  I  had  seen  something  somewhere,  some  idea, 
derived  from  something  I  had  read  some  time,  probably 
when  I  was  a  student,  when  reading  some  text  book,  that 


:202  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

iiiiolit  have  some  bearing  on  the  case,  but  what  it  was  I 
could  not  say.  It  was  but  a  vague,  indefinite  impression, 
and  seemed  rather  like  a  fleeting  dream  than  a  tangible 
idea;  that  I  felt  confident  that  I  had  never  seen  a  case  from 
which  that  thought  had  arisen,  and  that  I  felt  no  assurance 
that  there  was  any  principle  laid  down  in  the  books,  in  any 
way  qualif3'ing  the  decisions  which  seemed  to  be  so  directly 
in  point,  holding  that  this  condition  subsequent  was  valid. 

Breese  then  picked  up  the  record  from  my  desk,  placed 
it  in  my  hands  and  said :  "  You  take  this  record  and 
hang  on  to  the  tail  of  that  idea  till  you  follow  it  up  to  its 
head,  until  you  find  some  law  to  beat  this  unnatural  rascal, 
Avho  would  cheat  his  sister  out  of  her  inheritance  just  be- 
cause she  wanted  to  get  married  a  few  months  before  the 
time  fixed  b}^  the  old  man." 

1  took  the  record  home  with  me,  and  after  I  had  finished 
writing  opinions  in  all  my  other  cases  I  took  up  this.  I  ex- 
amined careful!}^  all  the  Digests  in  the  library,  and  went 
through  the  English  reports.  I  sought  thoroughly,  without 
finding  a  single  word  bearing  in  any  way  upon  the  case,  still 
believing  that  there  was  something  somewhere  that  would 
throw  some  light  upon  it  on  one  side  or  the  other.  I  took 
down  Jarman  on  Wills,  and  went  home  determined  to  read 
every  text  book  in  the  library  on  that  subject  before  I 
would  give  up  the  search,  and  commenced  reading  at  the 
very  beginning,  and  then  proceeded  very  deliberately  page  by 
page  until  I  had  got,  perhaps,  two-thirds  of  the  way  through 
the  book,  when  I  read  a  short  paragraph  which  did  not  at  first 
attract  my  attention  particularly,  and  I  passed  on;  but  before 
I  had  finished  the  next  paragraph  the  previous  one  began  to 
impress  itself  upon  me,  and  I  looked  back  and  read  it  again, 
and  the  more  I  studied  it  the  more  I  thought  it  contained 
something  to  the  purpose.  It  referred  to  several  old  En- 
glish cases,  the  reference  to  which  I  took  down,  and  made 
my  way  to  the  library  as  soon  as  possible,  impatient  to  see 
what  these  references  would  develop.  In  less  than  an  hour 
I  found  the  law  to  be  as  well  settled  as  anv  other  well  rec- 


THE  CONFERENCE  ROOM.  203 

ognized  principle  of  law,  that  where  a  testator  devises  an 
estate  to  his  heir  accompanied  with  a  condition  of  forfeit- 
ure, a  breach  of  that  condition  shall  not  work  the  forfeit- 
ure, unless  its  existence  is  brought  home  to  the  knowledge 
of  the  heir,  and  this  rule  applies  as  well  to  conveyances  by 
deed  as  by  device.  I  still  think  it  a  little  remarkable  that 
these  cases,  although  few  and  most  of  them  very  old,  are 
not  found  referred  to  in  any  of  the  Digests  which  I  have 
consulted,  and  that  no  such  case  appears  ever  to  have  arisen 
in  any  of  the  courts  of  the  United  States,  or  in  later  times 
in  England,  and  it  is  probable  that  to-day  this  case  stands 
alone  in  the  American  reports. 

When  I  read  my  opinion  at  the  next  conference  Judge 
Breese  especially  manifested  great  satisfaction  at  the  result 
of  my  investigations,  and  walked  across  the  room  and 
patted  me  on  the  back,  saying,  "  Well  done,  my  good  boy," 
and  seemed  not  less  pleased  at  the  strictures  I  had  ex- 
pressed in  the  latter  part  of  the  opinion  upon  the  conduct 
of  the  hard-hearted  brother,  as  he  termed  him,  and  in  this 
expression  we  all  concurred. 


IX. 

REPORTERS  OF  THE  SUPREME  COURT. 

SALARIES LABORS PERSONAL    MENTION. 

I  should  not  close  these  sketches  of  the  bench  and  bar  of 
Illinois  without  referring  to  the  reporters  by  whose  labors 
the  decisions  of  the  Supreme  Court  of  this  State  have  been 
put  in  proper  form  and  laid  before  the  profession,  not  only 
in  our  own  State,  but  throughout  the  Union.  To  their 
ability  and  their  industry  we  are  all  deeply  indebted  for 
the  fidelity  with  which  they  have  performed  their  tasks,  and 
they  certainly  deserve  a  recognition  from  those  whose  labors 
they  have  recorded  as  well  as  from  those  who  have  profited 
by  their  industry. 

When  I  first  cast  my  lot  with  the  profession  in  this  State, 
Breese's  Reports  alone  had  been  placed  before  the  public. 
It  was  a  small  volume  and  contained  the  decisions  from  the 
organization  of  the  Supreme  Court  in  1819,  up  to  the  close 
of  the  December  term  of  that  court  in  1831. 

Necessarily  the  relations  existing  between  the  reporters 
and  the  bench  were  of  the  most  intimate  and  confidential 
character.  They  occupied  desks  in  the  conference  room 
and  were  present  at  the  deliberations  there  conducted, 
and  sometimes  assisted  the  judges  in  reading  arguments, 
abstracts  or  briefs.  The  propriety,  and  sometimes  even  the 
necessity,  of  this  is  manifest  when  we  appreciate  they  were 
thus  enabled  to  understand  more  full}^  the  scope  of  the 
arguments  adduced  by  the  different  judges  in  their  delibera- 
tions upon  each  case,  by  which  they  were  led  to  the  decisions 

(204) 


JONATHAN  YOUNG  SCAMMON, 


REPORTERS  OF  THE  SUPREME  COURT.  205 

aiinounced  in  the  formal  opinions  which  they  had  to  report, 
and  they  were  bound  by  the  same  obligations  of  secrecy 
which  rested  upon  the  judges. 

Sydney  Breese  was  a  young  man  then,  but  he  Avas  a  good 
lawyer  and  had  already  attained  a  high  position  at  the  bar. 
His  subsequent  career  as  jurist,  while  he  occupied  a  seat 
on  the  supreme  bench  of  his  adopted  State  for  twenty-two 
years,  having  served  six  years  of  the  meantime  in  the  United 
States  Senate,  well  maintained  the  reputation  which  he  had 
so  early  acquired.  This  reputation  grew  with  his  A^ears  of 
experience  and  industry,  until  he  finally  closed  his  career 
by  death  in  1878,  while  he  was  still  a  member  of  that  court, 
of  which  he  had  been  one  of  the  brightest  ornaments.  His 
fame  will  be  perpetuated  so  long  as  integrity,  ability  and 
industry  shall  be  appreciated. 

After  Breese's  reports  were  closed,  the  decisions  of  our 
Supreme  Court  remained  quietly  in  their  archives  until 
1839.  when  Jonathan  Young  Scammon  was  appointed  to 
that  court,  and  he  continued  as  official  reporter  until  after 
I  came  upon  the  bench.  The  first  volume  of  Scammon's 
Reports  was  published  in  1843,  and  the  third  and  fourth 
volumes  brought  the  decisions  up  to  the  close  of  the  De- 
cember term,  1843.  Scammon  was  an  able  lawyer  with 
a  well  disciplined  mind,  who  clearly  comprehended  and 
plainly  and  succinctly  stated  the  points  decided  in  the  case. 
The  syllabi  of  his  cases  are  models  of  perspicuity  and  brevity. 

Upon  the  resignation  of  Mr.  Scammon,  Chas.  Gilman  was 
appointed  reporter  to  the  court.  He  continued  to  hold  that 
office  until  the  time  of  his  death,  in  July,  1849.  He  published 
five  volumes  of  reports,  entitled  Gilman's  Reports,  the  first 
four  of  which  contained  the  decisions  of  the  court  of  nine 
judges  from  Scammon's  time  up  to  the  time  when  that  court 
was  legislated  out  of  office  by  the  Constitution  of  1848. 
His  fifth  volume  contains  the  decisions  of  the  new  court  of 
three  judges  during  the  first  year  of  their  term  of  office, 
that  is  to  say,  from  the  December  term,  1848,  to  the  June 
term,  1849,  both  inclusive.     Mr.  Gilman  was  an  excellent 


206  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

lawyer,  a  man  of  great  industry,  and  conscientious  in  the 
discharge  of  the  duties  of  his  office.  He,  like  his  prede- 
cessors, did  the  work  himself  of  preparing  the  opinions  for 
the  press,  reading  the  proofs,  and  superintending  the  publi- 
cation of  his  work.  This  work  upon  the  fifth  volume  was 
not  completed  at  the  time  of  his  death.  It  contains  the  first 
year's  work  of  the  three  judges,  consisting  of  608  pages,  and 
contains  the  decisions  of  ninet3^-eight  cases. 

Upon  the  death  of  Mr.  Oilman,  Ebenezer  Peck  was  ap- 
pointed reporter,  at  the  December  term,  1849,  and  he  held 
that  office  and  discharged  his  duties  for  a  period  of  fourteen 
3^ears  or  till  the  January  term  in  18C3,  when  he  resigned  the 
office  of  reporter,  to  accept  the  office  of  judge  of  the  Court  of 
Claims,  at  Washington,  to  which  he  had  been  appointed  by 
Mr.  Lincoln.  During  these  years  Judge  Peck  issued  eightr 
een  volumes  of  the  reports.  He  abandoned  the  practice, 
which  had , hitherto  been  observed,  of  calling  the  reports 
after  the  names  of  the  reporters,  and  so  entitled  his  first 
volume,  Illinois  Eeports,  Volume  XI,  ten  volumes  of  the 
Supreme  Court  of  Illinois  having  been  previously  issued; 
Judge  Peck's  last  volume  being  SOth  111.  These  volumes 
testify  to  the  capacity,  industry  and  fidelity  of  the  reporter. 

For  several  winters  the  reporter  and  myself  occupied  the 
same  room  and  did  our  work  at  night  side  by  side,  and 
thus  I  was  enabled  to  observe  his  mode  of  preparing  the 
cases  for  the  printer,  the  systematic  order  in  which  his 
Avork  was  done,  and  the  industry  and  zeal  which  he  devoted 
to  the  discharge  of  his  official  duties. 

All  of  this  is  manifest  to  any  one  who  will  carefully  ex- 
amine these  reports. 

After  the  resignation  of  Judge  Peck,  Norman  L.  Freeman 
was  appointed  reporter  at  the  April  term,  1863,  and  he  has 
filled  that  office  with  great  accei)tability  up  to  the  present 
time,  and  it  may  be  earnestly  hoped  that  he  will  be  able  to 
do  so  for  many  years  to  come. 

My  first  decisions  are  to  be  found  in  the  third  volume  of 
Scammon,  and  my  last  in  the  33d  of  the  Illinois  Eeports,  so 


EBENK/KK    I'KCK. 


NORMAN    L.    FKEKMAN. 


REPORTERS  OF  THE  SUPREME  COURT.  207 

it  will  be  seen  that  I  helped  to  make  up  the  decisions  con- 
tained in  thirt}^  volumes  during  the  twenty-two  years  I  was 
on  the  supreme  bench,  and  it  is  with  great  satisfaction  that 
I  can  say  that  all  of  the  reporters,  excepting  Breese,  have 
held  office  and  discharged  their  duties  during  the  time  when 
I  was  on  the  bench. 

Mr.  Freeman  had  practiced  before  our  court  for  a  num- 
ber of  years  before  he  was  appointed  its  reporter,  and  we 
were  all  familiar  Avith  his  eminent  fitness  as  a  lawyer  for 
that  place,  but  his  other  qualifications  remained  to  be 
proved;  and  in  these  he  has  far  surpassed  the  most  san- 
guine expectations  of  the  court,  the  profession,  and  his  per- 
sonal friends.  The  experience  which  he  has  had  has  year 
by  year  shown  an  improvement  in  his  work.  He  has  not 
been  content  to  keep  up  the  standard  of  the  work  which 
existed  at  the  time  of  his  acceptance  of  office,  but  the  im- 
provement which  is  manifested  in  almost  every  succeeding 
volume,  shows  that  his  ambition  to  excel  has  not  dimin- 
ished; that  his  cajmcity  to  improve  has  grown  with  his 
opportunities;  that  his  ability  for  labor,  and  his  untiring 
zeal  for  improvement  have  never  diminished  from  the 
very  beginning.  He  has  lately  issued  the  one  hundred  and 
seventh  volume  of  his  own  reports,  and  this  implies  an  amount 
of  labor  which  few  men  living  could  have  performed  and  per- 
formed it  well.  We  may  know  that  from  the  amount  of 
work  accomplished,  he  must  have  employed  many  assist- 
ants, and  from  the  character  of  the  work  done,  that  these 
assistants  must  have  been  able  men;  yet  the  whole  bears 
the  impress  of  his  personal  supervision,  not  alone  of  one 
department,  but  of  all  departments  alike. 

Probably  no  reporter  living  has  had  the  experience  or 
performed  the  labor  involved  in  the  production  of  these 
hundred  volumes,  and  I  hesitate  not  to  say  that  he  stands 
at  the  very  head  of  the  legal  reportorial  profession. 


X. 

THE  FRAILTY  OF  HUMAN  MEMORY. 
PEKSONAL    INCIDENT. 

I  have  often  been  impressed,  not  to  say  alarmed,  with 
my  observations  demonstrating  the  frailty  of  human  mem- 
ory. When  we  remember  how  much  of  our  rights,  our 
liberties  and  our  lives  depend  upon  human  testimony, 
founded  upon  human  memory,  we  may  well  feel  alarmed 
when  we  see  how  frail  our  memories  are.  Laying  aside  the 
want  of  integrity  and  intentional  falsehood,  which,  of  them- 
selves, may  well  cause  us  to  fear  that  the  truth  may  be  per- 
verted or  denied,  much  more  danger  is  to  be  apprehended 
from  misrecollection  or  erroneous  observation  of  occurring 
events,  as  they  transpire.  In  the  ascertainment  of  truth, 
much  more  is  to  be  feared  from  the  honest  witness  than 
from  the  corrupt  perjurer.  The  falsehood  of  the  latter  is 
much  more  easily  detected  than  the  mistakes  of  the  former. 
I  might  write  a  volume  giving  my  observations  on  this  sub- 
ject, and  yet  leave  much  untold;  still  I  should  repeat  much 
that  might  be  paralleled  by  the  observations  of  others. 

Let  me  relate  one  instance  of  many,  in  my  own  experience, 
showing  how  unreliable  is  our  recollection  of  past  events. 

In  the  spring  of  1835  three  of  us,  then  young  men, 
planned  a  horseback  excursion  with  three  young  ladies  of 
Chicago.  The  late  C.  B.  Dodson  with  Miss  Sherman,  now 
Mrs.  Thomas  Church ;  Horace  Chamberlin,  who  not  long 
after  lost  his  life  in  the  Texas  revolution,  and  Miss  Eose 
liatheway,  many  years  since  deceased,  who  was  a  sister  of 

(208) 


THE  FRAILTY  OF  HUIMAN  IHE^IORY.  209 

the  late  Mrs.  John  Calhoun,  of  Chicago,  and  myself  with 
Miss  Agnes  Spence,  constituted  the  party.  All  were  good 
riders,  and  all  the  horses  selected  were  spirited  and  liv^ely. 
The  trip  laid  out  Avas  to  go  down  to  the  Calumet  river, 
twelve  miles  distant,  where  we  would  take  lunch,  and  then 
return  to  the  city.  The  way  led  us  along  the  road  south 
four  miles  to  the  oak  woods,  thence  throuofh  timber  all  the 
way  to  Hale's  tavern,  situated  on  the  banks  of  the  Calumet, 
at  the  crossing  of  that  stream.  The  road  was  considerably 
traveled,  but  through  the  timber  was  confined  to  a  single 
wagon  track,  which  wound  along  through  the  trees,  some- 
times close  to  the  shore  of  the  lake,  at  others  a  short  distance 
from  it,  according  as  the  nature  of  the  forest  or  the  ground 
permitted.  The  first  four  miles  were  over  the  usual  race 
course,  where  those  who  had  fast  horses  were  in  the  fre- 
quent habit  of  trying  conclusions,  and  as  soon  as  we  strack 
this  race  course  Miss  Spence's  horse  showed  that  it  was 
familiar  ground  to  him,  and  he  plunged  ahead  in  a  way  that 
showed  that  he  thought  it  his  duty  to  win  another  race 
there.  I  soon  caught  his  rein  and  brought  him  down, 
while  the  lady  protested  I  should  leave  it  all  to  her,  that 
she  could  manage  him,  and  would  give  him  as  long  a  run  as 
he  wanted;  but  to  this  I  would  not  consent.  Her  widowed 
mother  had  allowed  her  to  come  with  me  very  reluctantly, 
fearing  that  some  accident  might  befall  her,  and  it  was  only 
upon  my  repeated  assurance  that  I  would  take  the  greatest 
possible  care  of  her  and  would  be  absolutely  responsible  for 
her  safety,  that  she  had  consented.  This  incident  no  doubt 
prompted  me  to  greater  caution  than  I  might  otherwise 
have  exercised,  so  I  took  a  check  rein,  attached  to  the  bit 
of  her  horse,  and  carried  it  in  my  hand  all  the  way.  She 
chafed  at  this  almost  as  much  as  the  horse  did,  and  she  soon 
convinced  me  that  she  was  a  superior  rider,  and  could  man- 
age the  horse  with  skill;  but  I  knew  if  he  should  take  it  into 
his  head  to  run  away  in  the  forest,  which  we  were  approach- 
ing, she  would  be  powerless  to  manage  him,  so  I  persist- 
14 


210      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

ently  held  the  check  rein.  We  had  our  little  dashes  all 
the  same,  and  each  exhilarating  run  served  to  elevate  our 
spirits  and  made  us  forget  our  prudent  resolutions. 

Finally  Dodson  proposed  a  race  between  our  ladies,  which 
Avas  promptly  acce])ted  upon  the  condition  that  he  should 
ride  abreast  with  his  lady,  while  the  check-rein  compelled  me 
to  do  the  same  with  mine.  The  roadway  was  narrow,  but  for 
half  a  mile  ahead  was  straight  and  the  timber  open,  and  so 
we  all  dashed  ahead  at  top  speed,  and  the  half  mile  of 
straight  road  was  quickh^  covered.  We  then  took  a  turn 
to  the  left,  so  that  we  could  not  see  the  road  before  us  until 
we  reached  the  turn.  I  was  on  the  extreme  right  w4th  Miss 
Spence  on.  my  left,  and  next  to  her  was  Miss  Sherman,  with 
Dodson  on  the  extreme  left.  This  gave  the  ladies  the  mid- 
dle of  the  track,  while  we  were  on  the  outer  sides.  When 
we  turned  a  bend  in  the  road  at  full  speed  I  was  appalled. 
A  larg'e  oak  tree  stood  on  the  left  hand  side  near  the  road, 
from  which  a  large  limb  projected  out  over  the  road.  l!^ear 
the  trunk  it  was  high  enough  to  allow  a  horseman  to  pass 
under  it,  but  further  on  it  bent  down,  so  that  I  saw  it  must 
inevitably  sweep  my  ladv  from  the  saddle,  ^vhile  I,  by  chang- 
ing my  position  a  little,  could  escape  it.  I  pulled  up  both 
of  our  horses  with  such  force  as  to  throw  theiri  on  their 
haunches,  and  told  her  to  throw  herself  back  intending  to 
catch  her  on  my  left  arm,  but  when  I  extended  m}"  arm  for 
this  purpose  I  found  that  it  was  restrained  by  my  riding  whip 
wdiich  I  held  in  my  hand  looped  around  the  left  arm.  The 
consequence  was  tliat  she  fell  backward  to  the  ground  right 
between  the  horses,  at  the  ver}^  instant  that  1  threw  them 
upon  their  haunches,  by  pulling  them  up  with  all  ray  might. 
Ko  one  can  imagine  my  feelings  at  that  moment,  when  it 
seemed  certain  she  must  be  trampled  to  death,  and  the 
picture  came  up  before  me  of  carrying  her  mangled  corpse 
back  to  her  widowed  mother  whom  w^e  had  left  so  short  a 
time  before.  As  soon  as  possible  I  turned  around  to  see  the 
result,  and  was  astonished  to  see  that  she  had  already  regained 
her  feet  and  was  shaking  the  dust  from  her  riding  habit 


THE  FRAILTY  OF  HUJtIAN  MEMORY.  211 

Of  course  I  dismounted  as  soon  as  possible,  and  ran  up  to 
her,  but  was  so  paralyzed  that  I  could  hardly  ask  her  where 
she  was  hurt,  and  led  her  to  a  log  near  by,  where  she  sat 
down,  saying  she  believed  she  was  not  hurt  at  all.  By  this 
time  the  rest  of  the  party  had  come  up  and  an  examination 
was  instituted.  It  was  found  that  a  curl  or  lock  of  hair 
near  her  forehead  had  been  cut  off  by  a  cork  of  one  of  the 
liorse-shoes,  which  had  stepped  upon  it,  as  it  dropped  upon  a 
stone  in  the  road.  Still  the  severed  hairs  were  hano-in^  in- 
tertwined  with  the  others.  The  only  scratch  found  was 
upon  one  of  the  ankles,  where  a  cork  had  cut  a  hole  in  the 
stocking,  but  hardly  discoloring  the  skin,  and  she  insisted 
that  the  jar  of  the  fall  had  not  hurt  her  in  the  least. 

Chamberlin  and  Miss  Hatheway  had  followed  along  so 
as  to  keep  near  us,  and  the}'  described  the  scene  as  fairly 
appalling  when  they  saw  her  fall  head  first  between  the 
horses  at  the  very  instant  they  were  so  violently  drawn  back. 
That  was  an  escape  which  may  not  be  often  paralleled,  and 
I  am  sure  that  I  felt  the  shock  longer  than  the  lady  did,  for 
in  a  very  short  time  she  was  as  lively  as  ever. 

We  soon  mounted  and  pursued  our  journey  to  Hale's  tav- 
ern, where  we  got  our  lunch  and  spent  an  hour  or  two  with 
about  as  much  joyous  jollity  as  six  young  people  knew  how 
to  raise.  We  then  returned  to  the  city  without  incident. 
There  was  no  more  running  of  horses  that  day. 

Many  years  later,  when  I  was  holding  the  Circuit  Court  at 
Geneva,  Kane  count}^  during  a  social  chat  with  Mr.  Dodson, 
I  incidentally  mentioned  that  it  occurred  when  Ave  were  going 
out.  "  No,"  said  he,  "  It  took  place  when  we  were  return- 
ing." I  insisted  that  it  occurred  while  we  were  going  out, 
and  referred  to  the  fact  that  I  had  observed  the  lake  on  our 
left  during  the  race,  whereas  if  it  had  occurred  on  our  return 
the  lake  would  have  been  on  our  right.  'Now,  there  are  few 
events  in  my  past  life  which  are  as  deeply  im})ressed  on 
ray  memory  as  this,  and  I  feel  absolutely  certain  that  I  am 
right  in  my  recollection.  Indeed,  I  well  remember  that  the 
whole  matter  was  discussed  when  we  stopped  for  lunch;  but 


212  EARLY  BENCH  AND   BAR  OF  ILLINOIS. 

all  the  incidents  to  wliicli  I  could  refer  in  confirmation  (if 
my  recollection,  could  not  have  the  least  influence  in  the 
belief  of  Mr.  Dodson,  and  his  conviction  was  so  fixed  that 
I  have  not  the  least  doubt  he  would  have  sworn  to  it  witli- 
out  hesitation,  if  he  knew  that  his  own  life  depended  on 
the  truth  of  his  statement;  and  my  belief  in  the  correctness 
of  my  recollection  of  the  event,  and  that  it  occurred  while 
we  were  going  out,  is  equally  strong,  though  my  observa- 
tions have  taught  me  to  distrust  my  own  memory  as  well  as 
that  of  others,  and  so  even  in  this  I  may  have  been  wrong; 
but  I  must  say  that  I  do  not  believe  it  is  so. 

We  finally  agreed  to  leave  it  to  the  ladies,  two  of  whoin 
were  still  in  Chicago,  and  he  promised  to  call  upon  them  the 
first  time  he  went  to  the  city,  and  get  their  recollection  of 
the  matter.  AVhen  I  met  him  again  some  time  later,  I  asked 
him  if  he  had  seen  the  ladies  and  what  they  said  about  it. 
"  Yes,"  said  he,  "  I  have  seen  them,  but  I  very  soon  saw  that 
you  had  all  conspired  together  to  get  up  a  lie  and  make  a 
fool  of  me,  but  it  won't  work.  I  know  that  it  occurred 
when  we  were  returning." 

Still  when  I  remember  the  many  instances  when  I,  my- 
self, as  well  as  others,  who  have  entertained  as  strong  con- 
victions as  I  had,  and  still  have,  that  the  accident  happened 
when  we  were  going  out,  have  been  mistaken,  and  it  has 
been  conclusively  proved  that  we  were  in  error,  I  am  con- 
strained to  admit  that  Mr.  Dodson  may  have  been  right 
in  his  recollection  of  the  occurrence. 

I  have  in  a  paper,  when  giving  an  account  of  the  trial  of 
Rider  for  murder,  shown  how  Mr.  Havenhill,  a  witness  for 
the  State,  had  been  mistaken  in  his  previous  testimony,  when 
he  had  sworn  that  he  had  seen  the  prisoner  through  a  cer- 
tain window  in  the  house,  and  nothing  short  of  his  own 
observation  of  the  fact  that  there  was  no  window  on  that 
side  of  the  house,  could  have  convinced  him  of  his  error. 
That  he  was  honest  in  his  previous  testimony,  he  has  dem- 
onstrated from  the  fact  that  he  hastened  with  all  speed  to 


THE  FRAILTY  OF  HUSIAN  MEMORY.  213 

appear  in  court  and  acknowledge  his  error  before  the  trial 
closed. 

It  is  but  a  part  of  human  nature,  that  those  who  have  had 
the  least  opportunity  of  observing  the  occurrence  of  such 
niisrecollections  bv  men  of  the  highest  integrity,  are  the 
most  persistent  in  their  conclusions  that  they  are  certainly 
right,  and  are  loath  to  admit  that  others,  with  equal  oppor- 
tunities, can  not  honestly  disagree  with  them, 

I  must  again  repeat  that  I  am  appalled,  when  I  remem- 
ber that  all  our  rights  may  depend  u^^on  human  recollec- 
tion, which  I  know  is  so  liable  to  error,  and  when  I  also 
a})preciate  that  it  is  impossible  to  devise  other  means  for  the 
ascertainment  of  truth.  At  best,  we  can  ascertain  all  the 
surrounding  circumstances,  and  adopt  those  conclusions 
which  seem  most  probable  from  our  observations  of  human 
ev^ents,  and  these  observations  are  so  variant  in  different 
men,  and  we  may  so  often  adopt  different  conclusions  from 
the  same  circumstances,  that  here,  too,  may  be  great  liabili- 
ties to  error. 

A  special  training  for  the  ascertainment  of  truth  from 
given  circumstances  is  of  the  greatest  value,  and  our  pro- 
fession affords  the  greatest  facilities  for  this  training;  though 
we  may  soon  be  obliged  to  admit  that  the  modern  detective 
system  affords  a  still  better  school,  for  the  reason  that  the 
mind  is  not  diverted  from  that  single  study  b}"  other  im- 
portant matters. 


APPENDIX. 


RECOLLECTIONS  OF  THE  EARLY  BENCH  AND  BAR. 

ADDRESS     DELIVERED     BEFORE     THE    ILLINOIS     STATE     BAR    ASSO- 

CIATIOlf,    AT    SPRINGFIELD,  JANUARY    2i,  1893, 

BY    JOHN   DEAN    CATON. 

iJ//'.   Presiflent  and    Gentlemen  of  the  Illinois  State  Bar 
Association: 

I  appear  before  you  as  the  representative  of  those  who 
once  filled  the  places  which  you  now  occupy.  It  is  a  source 
of  extreme  satisfaction  to  be  assured,  by  your  kind  invita- 
tion, that  amid  the  cares,  the  duties  and  the  responsibilities 
of  an  arduous  profession,  I  am  not  forgotten  by  those  who 
have  come  up  in  later  years  to  fill  the  places  and  bear  the 
burdens,  which  were  once  filled  and  once  borne  by  those 
who,  with  rare  exceptions,  have  been  called  to  appear  be- 
fore a  higher  bar,  where  no  errors  are  committed  and  no 
rehearings  can  be  asked  for. 

Sixty  years  is  a  long  time  for  any  individual  to  have  acted 
upon  the  stage  of  life,  and  the  changes  which  have  taken 
place  during  that  time,  in  almost  every  branch  of  human 
thought,  are  very  great,  and  in  them  our  profession  has 
largely  participated.  Within  the  last  fifty  years  the  dif- 
ferent modes  of  doing  business  and  the  means  of  accom- 
plishing desired  ends,  have  been  more  marked  than  in  any 
previous  thousand  years,  and  so  have  been  compelled  alter- 
ations in  the  laws  and  in  the  modes  of  administering  them. 

(215) 


2]  G  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

Many  of  these  apparent  changes  were  possible  by  the 
courts,  under  the  flexibility  of  the  common  law,  siinply 
because  the  principles  of  that  law  were  founded  upon  the 
reason  of  things  and  the  results  of  human  experience. 

Old  rules,  which  had  been  adopted  by  the  courts  to  meet 
conditions  which  had  previously  existed,  had  to  be  changed, 
or  even  abrogated,  as  new  emergencies  demanded,  as  reason 
and  experience  dictated.  As  all  the  changes  in  the  law, 
which  altered  conditions  seem  to  require,  could  not  be  made 
by  the  courts  under  the  plea  of  construction,  legislative  en- 
actments w^ere  in  some  cases  demanded,  and  the  Legislatures 
of  the  various  States  early  addressed  themselves  to  the  task 
of  passing  statutes  which  they  supposed  were  required  by 
the  altered  modes  of  conducting  human  affairs.  Many  of 
these  were  wise  and  necessary,  Avhile  in  others  it  would  have 
been  better  had  the  subjects  of  them  been  left  to  the  courts, 
which  were  better  qualified  to  deal  with  them. 

From  long  experience  and  observation,  I  am  compelled  to 
say  that  legislative  bodies  more  frequently  legislate  too  much 
than  too  little.     This  is  by  no  means  a  new  evil. 

Even  the  Komans,  during  the  Imperial  period,  indulged 
their  mania  for  legislation  to  such  an  extent,  that  finally  it 
was  admitted  that  no  man  knew  what  the  law  was. 

And  hence,  under  the  reign  of  Justinian  the  Great,  Tri- 
bonian,  with  his  associates,  prepared  the  Justinian  Code, 
which,  by  the  Imperial  fiat,  was  made  the  law  of  the  land, 
and  the  precedents,  or  decisions  of  the  courts  were  carefully 
digested  in  what  is  called  the  Pandects,  to  aid  in  the  inter- 
pretation of  the  Code,  and  from  these  grew  up  the  civil  law 
of  the  continent  of  Europe,  to  which  even  the  common  law 
is  indebted  for  those  great  principles  of  right  and  WTong 
which  the  consciousness  of  wise  and  enlightened  men  rec- 
ognizes as  just.  And  this,  in  its  broadest  sense,  should  be 
the  basis  of  all  law  for  the  protection  of  individual  rights 
and  the  rights  of  organized  communities. 

The  courts,  compelled  by  emergencies,  have,  under  the 
plea  of  construction,  introduced  apparent  changes  of  the  laAV 


JUDGE  CATON'S  ADDRESS.  2 1  7 

to  meet  the  demands  in  the  chano-es  of  the  mvodcs  of  doino- 
business,  and  in  general,  I  may  say,  tliese  changes  have  been 
quite  as  salutary  as  those  made  by  the  Legislatures. 

These  rules  of  law  have  been  made  by  able  men,  deeply 
learned  in  the  science  of  government,  with  no  special  inter- 
est to  subserve  after  receiving  the  advice  of  the  gentlemen 
of  the  bar,  who  present  to  their  considerations  the  fruits  of 
deep  study  and  the  observations  of  experience. 

They  act  under  a  sense  of  responsibility  to  the  whole  com- 
munity and  to  civilization,  knowing  that  their  decisions  will 
be  scrutinized  and  criticised  by  the  ablest  men  who  shall 
come  after  them,  and  who  must  pass  a  final  judgment  upon 
what  they  do.  Many  more  safeguards  are  thrown  around 
the  judicial  tribunals,  to  secure  wise  and  impartial  action, 
than  can  surround  Legislatures. 

The  former  have  no  constituency  whose  special  interest 
they  feel  called  upon  to  subserve,  while  the  latter  have  varied 
constituencies,  who  may  have  conflicting  interests  to  protect 
or  promote,  for  which  representatives  may  feel  called  upon 
to  exert  themselves.  But  legislative  bodies  can  not  be  dis- 
pensed with  in  free  governments.  They  are  the  very  bul- 
wark of  liberty,  and  whatever  conflicting  interests  they  may 
represent,  as  affecting  their  immediate  constituents,  when- 
ever great  interests  of  State  become  involved,  thev  rise 
above  the  petty  considerations  of  local  interest,  and  answer 
to  the  demands  of  patriotism  which  will  uphold  and  insure 
the  paramount  welfare  of  the  State. 

Precedents,  or  previous  decisions,  involving  the  same 
principles,  have,  among  the  ancients  as  well  as  moderns, 
constituted  the  great  body  of  the  laws  in  all  civilized  coun- 
tries, and  so  they  will  continue  to  do,  so  long  as  the  advance- 
ment of  civiliiation  shall  continue.  "When  the  exigencies  of 
society  shall  require  important  changes  in  principles,  they 
must  be  brought  about  by  legislation;  but  the  infirmities  of 
human  language,  in  which  these  changes  must  be  expressed, 
are  such  that  the  courts  of  law,  whose  dut}^  it  is  to  enforce 
them,  must  give  them  construction,  and  so  declare   their 


218       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

meaning,  and  give  them  practical  application  to  the  affairs 
of  men.  Wise  legislation  is  of  little  value  without  wise  con- 
struction and  administration,  and  in  this,  an  able  bar  is  of 
not  less  importance  than  an  able  bench.  The  members  of 
the  bar  are  the  legitimate  advisers  of  the  courts,  and  I  can 
say  from  personal  experience  that  such  advice  is  anxiously 
listened  to  and  most  attentively  considered.  It  is  a  staff 
upon  which  the  courts  lean,  while  traveling  the  path  which 
they  are  pursuing  when  seeking  the  ends  of  justice  and 
equity.  Every  member  of  the  bar  should  appreciate,  that 
while  his  duty  requires  that  he  should  defend  and  protect 
the  interest  of  his  client,  he  also  owes  a  duty  to  the  courts, 
to  aid  them  to  arrive  at  proper  results.  This  does  not  imply 
that  the  lawyers  engaged  on  opposite  sides  of  a  case  should 
always  maintain  the  same  positions,  or  defend  the  same 
principles,  for  that  would  be  misleading  to  the  bench.  To 
arrive  at  sound  conclusions,  it  is  important  that  controverted 
questions  should  be  presented  in  various  aspects,  for  that  is 
indispensable  to  enable  a  court  properly  to  balance  the 
reasons  which  may  be  urged  on  eitlier  side,  and  which  are 
necessary  to  arrive  at  correct  decisions. 

Seventy-five  years  have  elapsed  since  the  organization  of 
our  State  government.  But  fifteen  of  these  years  had 
passed  when  I  came  to  the  State  and  identified  my  interests 
with  its  people.  A  great  many  of  those  who  had  lived  here 
during  this  time,  and  in  the  territory  previously,  and  had 
helped  to  make  the  history  of  this  State  thus  far,  were  upon 
the  active  stage  of  life,  still  comparatively  young,  and  in 
the  full  vigor  of  manhood.  If  they  did  not  write  history  as 
they  made  it,  they  could  tell  it  most  charmingly  and  impress- 
ively. 

Many  of  these  have  helped  form  the  constitution  of  the 
State,  and  as  the  population  was  small,  nearly  all  the  prom- 
inent men  knew  each  other,  and  knew  what  each  had  done 
that  was  worthy  to  be  remembered. 

As  is  usual  and  might  be  expected,  members  of  our  own 
profession  were  among  the  most  prominent  and  most  widely 


JUDGE  CATON'S  ADDRESS.  219 

known  throughout  the  State,  and  among  these  I  formed  my 
first  acquaintances  and  my  first  friendships.  I  was  the 
junior  of  them  all,  and  so  was  largely  dependent  upon  their 
kindness  and  friendship  to  help  me  in  the  difficulties  which 
must  always  beset  a  3'oung  lawyer  commencing  the  practice 
of  his  profession,  where  the  habits  of  the  people  and  the 
mode  of  proceeding  differ  widely  from  those  in  tlie  State 
whence  he  came;  and  I  now  wish  to  bear  my  testimony  to 
the  large-hearted  generosity  and  kindness  of  those  who  then 
constituted  the  bar  of  the  State.  Instead  of  throwing 
obstacles  in  the  way  of  the  new  comer,  they  extended  to 
him  a  fraternal  hand,  and  took  a  genuine  pleasure  in  help- 
ing him  along  over  the  rough  places. 

At  that  time,  what  maybe  called  the  circuit  practice  nec- 
essarily prevailed,  and  in  each  circuit  in  the  State  there  was 
a  class  of  lawyers  who  attended  most  of  the  courts  in  their 
own  circuits,  and  very  frequently  attended  the  courts  in 
other  circuits,  mostly  to  try  important  causes,  where  their 
special  reputations  had  caused  them  to  be  retained.  This 
circuit  practice  was  a  special  school,  unequaled  in  its  way, 
and  in  it  these  circuit  lawyers  acquired  qualifications  which 
could  be  learned  in  no  other  school. 

They  had  but  few  books  to  study,  but  these  the}'  studied 
to  a  purpose.  Blackstone  and  Coke  upon  Littleton,  were 
their  favorite  books,  and  from  them  they  learned  the  funda- 
mental principles  of  the  law,  and  the  reasons  why  the  law 
was  so;  and  I  may  be  permitted  to  say  here,  that  one  may 
learn  to  state  the  rules  of  law  as  they  are  laid  down  in  the 
books  till  he  can  re])eat  them  like  the  alphabet,  yet  he  is 
not  a  lawyer  unless  he  fully  comprehends  why  they  are  the 
law;  what  are  the  reasons  which  have  made  them  the  law. 
This  and  this  alone  will  enable  him  to  apply  the  law  in 
every  emergency,  and  to  new  states  of  facts  as  they  must 
constantly  arise.  As  in  traveling  the  circuit  few  books 
could  be  carried,  and  but  rarely  were  books  to  be  found  at 
the  county  seats,  excepting  the  statutes,  this  sort  of  legal 
(j^ualification  was  indispensable  for  both  judges  and  lawyers, 


220      EAELY  BENCH  AND  BAR  OF  ILLINOIS. 

and  the  character  of  their  work  was  such  as  to  train  them 
to  think  quickly  and  accurately,  and  to  change  the  thoughts 
rapidly  from  one  subject  to  another. 

In  passing  from  one  county  seat  to  another,  the  judges 
and  law3'ers  always  rode  on  horseback,  with  saddlebags, 
very  frequently  traversing  uninhabited  prairies  of  from  ten 
to  twenty  miles  or  more  across.  Indeed,  at  that  early  time 
all  the  settlers  lived  in  cabins  along  the  skirts  of  the  timber, 
with  inclosures  in  the  adjoining  prairies  in  which  were  cul- 
tivated fields,  their  stock  ranging  in  the  groves  or  grazing 
on  the  prairies.  Nearly  every  cabin  entertained  travelers, 
who  stopped  for  meals  or  to  stay  over  night.  Ham  and 
eggs,  fried  chicken  and  warm  biscuit,  with  good  coffee,  con- 
stituted the  menu  at  nearly  every  cabin.  If  the  position 
was  such  that  the  approach  of  the  traveler  could  be  seen  some 
distance  away,  and  it  was  about  meal  time,  it  did  not  require 
very  attentive  listening  for  him  to  distinguish  the  outcry 
of  the  chickens  from  the  hen-coop  as  one  or  more  were 
baing  immolated,  which  he  knew  was  to  satisfy  the  cravings 
of  his  inner  man. 

If  a  boy  was  about  to  take  his  horse,  he  might  go  into 
the  house  at  once;  if  not,  he  would  have  to  stable  and  feed 
his  own  horse,  which  many  preferred  to  do,  to  make  sure 
that  they  were  well  cared  for.  If  he  went  into  the  house 
soon,  he  might  see  the  good  lady  pull  from  under  the  bed  a 
bread-tray,  which  was  kept  constantly  su])plied  with  dough, 
and  in  a  trice  the  biscuits  would  be  molded  and  placed  in 
the  bake-pan;  chickens  were  placed  in  the  frying  pan;  the 
coffee-pot  was  set  to  brewing;  the  table  was  set;  and  in  an 
incredibly  short  time  he  was  seated  at  the  table  with  a  meal 
before  him  as  inviting  as  was  ever  set  before  a  guest  in  the 
most  fashionable  hotel,  with  the  most  modern  conveniences. 
The  food  was  plain  but  substantial,  and  was  always  cooked 
to  a  turn.  It  was  not  smothered  up  in  rich  condiments,  but 
its  flavor  was  most  appetizing.  Even  now,  I  fondly  remem- 
ber the  feasts  which  I  have  enjoyed  in  those  log  cabins. 

In.  riding  from  one  county  seat  to  another,  the  judges 


JUDGE  CATON'S  ADDRESS.  2L'l 

and  lawyers  generally  traveled  in  a  band  together,  altliougli 
not  always  in  a  compact  body.  Ilsualh^  the  gait  Avas  a  fast 
walk  or  a  slow  trot,  and  frequently  the  band  would  be  sep- 
arated into  little  squads  of  from  two  to  four,  when  the 
monoton}^  of  the  ride  was  relieved  by  conversation  and  the 
relation  of  anecdotes  or  story-telling,  as  it  was  called, 
though  ordinaril}^  these  last  were  reserved  for  the  evening, 
when  the  whole  party  would  be  assembled.  Then  it  was 
that  the  delights  of  circuit  riding  were  most  ap]ireciated. 
All  were  good  story-tellers,  and  with  rare  exceptions  each 
one  added  somewhat  to  his  store  since  the  last  meeting, 
either  from  having  heard  a  good  story  from  somebody  else 
or  invented  one;  and  a  new  story,  if  it  were  only  a  good 
one,  was  always  received  in  the  way  that  showed  that  it 
was  fully  appreciated.  Frequently  a  quite  ordinary  inci- 
dent would  be  dressed  up  and  so  embellished  as  to  be  ex- 
ceedingly ludicrous  and  amusing. 

The  early  circuit  riders,  for  the  purpose  of  illustrating 
certain  characteristics  of  the  human  mind,  used  to  tell  a 
stor}'^  of  Judge  Harlan  (a  name  suggestive  of  the  ermine) 
when  he  was  circuit  judge.  They  stated  that  when  he  had 
closed  his  court  at  a  little  town  in  the  southern  part  of  the 
State,  and  nearly  all  were  ready  to  mount  their  horses  and 
proceed  to  the  next  county,  and  just  as  he  was  putting  his 
foot  in  the  stirrup,  a  lawyer  rushed  up  with  a  paper  in  his 
hand,  and  asked  him  to  sign  a  bill  of  exceptions.  "With  evi- 
dent marks  of  impatience,  he  dropped  the  reins  of  his  bridle, 
and  hastened  back  into  the  log  tavern  and  called  for  pen 
and  ink,  which  were  shown  him  on  the  little  counter  in  the 
bar-room.  Goose  quills,  then,  only  were  used  for  pens.  He 
seized  one  and  jammed  it  into  the  inkstand  with  such  force 
as  to  spoil  it.  He  only  appreciated  this  when  he  attempted 
to  sign  his  name.  And  this  crushing  process  he  repeated 
several  times  before  he  succeeded  in  writing  his  name,  and 
then  it  was  hardly  legible,  Avhen  he  threw  down  the  pen 
and  paper,  evidently  in  bad  humor,  and  bolted  from  the 
house,  mounted  his  horse,  applied  the  whip,  and  took  the 


222  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

lead  upon  the  trail  which  led  across  a  ten-mile  prairie  to 
a  cabin  in  a  grove  of  timber. 

The  rest  followed  as  best  they  could;  but  none  could  suc- 
ceed in  eliciting  from  him  even  a  word  of  recognition  dur- 
ing the  ride.  When  he  reached  the  cabin,  he  accosted  a 
woman  who  stood  at  the  front  of  the  house,  and  asked  her 
for  a  drink  of  water.  This  she  brought  him  in  a  gourd, 
from  the  well,  of  which  he  drank  heartily,  and  when  he 
returned  the  gourd  to  the  good  lady,  he  remarked,  "  That 
is  good  water  and  I  tell  you,  madam,  they  do  keep  the 
infernallest  pens  back  in  this  little  onery  town  that  we  just 
left,  that  you  ever  saw,"  and  he  again  took  the  lead,  appar- 
ently still  brooding  over  those  pens. 

Euchre  parties  were  frequently  formed,  and  so  was  time 
pleasantly  passed  ;  and  sometimes  a  dance  was  gotten  up, 
when  an  old  fiddle  could  be  found,  and  some  one  was  capa- 
ble of  using  it.  Judge  Young  himself  was  deemed  the  best 
fiddler  on  the  circuit,  and  so  contributed  much  t(^  the  hilar- 
ity of  such  occasions. 

Sometimes  a  mock  trial  was  instituted,  when  an  indict- 
ment was  presented  against  some  member  of  the  bar,  accus- 
ing him  of  most  ridiculous  crimes,  embellished  with  laugh- 
able incidents.  On  such  occasions,  the  judge,  the  lawyers 
and  the  witnesses  fairly  overflowed  with  wit ;  and  boister- 
ous laughter  was  not  considered  a  breach  of  decorum  in  that 
court,  and  the  verdict  of  the  jury  partook  of  the  character 
of  the  previous  doings.  A  verdict  of  "  guilty  "  was  almost 
a  foregone  conclusion,  and  the  penalties  inflicted  were  fre- 
quentl}^  the  most  ludicrous  and  amusing  of  all  the  proceed- 
ings. If  the  wit  was  keen,  it  was  frequently  deeply  pene- 
trating, but  the  subject  of  it  must  bear  it  good  naturedly 
and  console  his  irritated  feelings  with  the  reflection  that  he 
would  get  his  revenge  on  some  future  occasion.  To  show 
irritation  at  hard  rubs  was  the  worst  thing  a  man  could  do, 
but  to  turn  them  off  in  some  witty  way  enhanced  his  popu- 
larity for  the  time. 

But  the  first  few  days  of  the  term  could  not  be  given  up 


JUDGE  CATON'S  ADDRESS.  223 

to  .amusement;  all  thoughts  must  be  bent  on  business.  Be- 
fore the  cavalcade  of  judges  and  lawyers  had  arrived,  suitors 
and  their  friends,  witnesses  and  sightseers,  had  already  ap- 
peared, and  were  awaiting  this  important  arrival;  and 
scarcely  had  the  advocates  dismounted,  generally  covered 
with  dust  or  mud,  when  they  were  surrounded  by  clients, 
eagerly  seeking  to  engage  their  favorite  counsel,  and  as 
soon  as  their  leggings  and  dusters  or  overcoats  could  be  dis- 
carded, they  gave  ear  to  those  who  sought  their  services,  and 
listened  to  brief  accounts  of  the  cases  in  which  their  services 
were  sought.  One  man  wanted  a  suit  defended;  another 
wanted  a  case  tried;  another  a  suit  commenced,  and  soon 
everything  was  bustle  and  excitement.  Special  pleas  must  be 
])repared  in  one  case;  in  another,  a  demurrer  must  be  filed;  in 
a  third,  a  bill  in  chancery  must  be  drawn,  or  an  answer  pre- 
pared; and  in  another,  preparations  for  a  trial  which  might 
come  off  immediately;  and  finally,  some  poor  fellow  was  in 
jail  for  horse-stealing,  or  counterfeiting,  or  perhaps  for  mur- 
der, who  Avanted  a  lawyer  to  defend  him ;  and  all  this  heteroge- 
neous mass  of  business  was  rushed  in  upon  them  in  a  man- 
ner which  would  have  confused  any  mind  not  well  trained 
to  that  mode  of  practicing  law.  Not  infrequently,  men  were 
called  in  to  take  part  in  a  trial  when  the  jury  was  already 
being  called,  and  they  must  learn  the  case  during  the  trial 
itself,  and  it  was  astonishing  to  see  how  rapidly  they  could 
see  the  salient  ])oints  of  the  case,  and  methodically  arrange 
and  present  them. 

In  the  spring  of  1835,  for  the  first  time  I  attended  the 
Circuit  Court  at  Hennepin,  in  Putnam  County,  which  was 
held  by  Judge  Breese,  and  there  I  first  met  him.  Every- 
body was  talking  of  the  case  of  one  Pierce;  he  was  in  jail 
on  the  charge  of  larceny,  and  it  was  said  that  he  had  not 
only  confessed  that  he  stole  the  goods,  but  that  a  witness 
named  Thompson  had  sworn  before  the  committing  magis- 
trate that  he  saw  him  steal  them.  As  I  was  entirely  un- 
known I  took  little  interest  in  the  matter,  only  I  was 
struck  with  the  frequent  expressions  of  sympathy  for  the 


1>24  EARLY  BENCH  AND  BAH  CF  ILLINOIS. 

prisoner,  which  I  heard,  and  some  even  expressed  doubts 
of  his  o'uilt  after  all.  Judge  Breese  opened  the  court  the 
next  morning,  organized  the  grand  jury,  who,  in  the  course 
of  an  hour,  brought  in  an  indictment  against  Pierce,  who 
w^as  directly  brought  into  court.  "When  he  w^as  asked  if  he 
had  counsel,  he  replied  he  had  not,  and  had  nothing  with 
which  to  pay  counsel,  and,  in  answer  to  a  question  by  the 
court,  expressed  a  desire  that  counsel  might  be  appointed  to 
defend  him.  The  judge  then  asked  me  if  I  would  undertake 
his  defense,  assisted  by  Mr.  Atwater,  a  young  man  just  admit- 
ted to  the  bar,  and  very  lately  settled  in  the  towm — the  first 
lawyer  there.  We  accepted  the  appointment,  of  course.  It 
was  not  unusual,  at  that  time,  when  a  new  lawyer  appeared  at 
the  opening  of  the  circuit  for  the  judge,  as  a  mode  of  in- 
troducing him  to  the  people,  to  ask  him  to  defend  a  crim- 
inal, or  to  charge  the  grand  jury,  or  the  like,  and  w^e  ap- 
preciated this  appointment  as  an  act  of  kindness  on  the  part 
of  the  judge.  We  took  our  client  out,  and  sat  down  on  the 
grass  in  the  corner  of  a  rail  fence  to  learn  from  him  what 
w^e  could  of  the  case,  still  supposing  it  w^as  one  of  those 
desperate  cases  where  no  defense  is  possible.  We  requested 
Pierce  to  tell  us  the  exact  truth,  for,  if  he  were  guilty,  Ave 
could  make  a  better  defense  by  knowing  all  the  circum- 
stances of  the  case,  than  to  go  into  the  trial  ignorant  of  the 
real  facts.  He  said  he  w^as  perfectly  innocent;  that  Thomp- 
son and  his  own  wife  had  stolen  the  goods,  and  he  had  con- 
fessed he  stole  them  in  order  to  let  her  escape;  and  that  he 
w^as  so  sick  on  the  night  of  the  larceny  that  he  could  not 
leave  his  bed,  and  was  attended  by  a  nurse  and  a  doctor. 
After  a  searching  investigation,  w^e  w^ere  convinced  of  his 
innocence.  Pierce  also  stated  that  Thompson  was  a  ruffian 
and  a  terror  to  the  w^hole  people,  and  that  everybody  w\as 
afraid  to  say  a  word  against  him.  The  court  gave  us  till 
next  morning  to  prepare  for  trial.  As  I  was  going  to  my 
dinner,  a  man  crossed  the  street  quickly  and  spoke  to  me 
in  a  low  voice,  saying  that  Mr.  and  Mrs.  Fitzgerald,  who 
lived  two  miles  across  the  river  in  a  I02:  cabin,  knew  some- 


JUDGE  CATON'S  ADDRESS.  225 

thing  that  would  help  Pierce,  if  they  could  be  got  to  tell 
it,  and  disa})]ieared  as  if  in  alarm. 

I  scarcely  waited  for  dinner,  when  I  mounted  my  horse 
and  was  on  the  way  to  the  Fitzgerald  cabin.  After  I  had 
exhausted  every  effort  to  allay  their  manifest  fear  of 
Thompson,  they  finally  consented  to  tell  me  what  they 
knew  of  the  case,  which  was,  that  they  had  slept  in  the 
house  on  the  night  of  the  larceny,  and  had  seen  Thompson 
and  Pierce's  wife  take  the  goods  from  a  box,  about  mid- 
night, and  put  them  in  Pierce's  trunk;  and  they  promised  to 
appear  in  court  the  next  morning  and  testify  to  what  they 
knew.  I  galloped  back,  even  faster  than  I  had  come,  and 
found  that  Atwater  had  seen  the  nurse  and  doctor,  who  had 
corroborated  Pierce's  statement  about  his  sickness.  Of 
course  we  kept  all  this  a  profound  secret,  even  from  Pierce, 
On  the  trial,  the  next  morning,  Thompson  swore  that  he 
saw  Pierce  steal  the  goods,  and  in  my  cross-examination  I 
directed  my  efforts  to  make  him  swear  to  this  in  the  strong- 
est way  possible,  and  thus  apparently  injure  my  case.  In 
the  defense,  we  first  brought  the  doctor  and  the  nurse,  and 
then  Mr.  and  Mrs.  Fitzgerald,  who  seemed  to  have  lost  all 
terror  of  Thompson,  and  told  the  whole  story. 

Here  was  a  great  chance  for  a  speech  before  a  new 
audience — not  for  Pierce,  for  he  needed  none,  but  for  myself 
— in  which  I  j)ictured  Thompson  as  a  ruffian,  thief,  perjurer 
and  as  a  lecherous  scoundrel  generally,  in  words  which  I  had 
been  all  the  night  before  recalling  ;  and  before  I  was  done  he 
slunk  away  out  of  the  room  and  made  for  the  bush.  After 
a  verdict  of  acquittal,  the  court  adjourned,  and  before  I  had 
reached  my  hotel  I  was  retained  in  every  cause  then  pend- 
ing in  that  court,  and  in  some  very  important  causes  to  be 
commenced,  and  never  after  did  I  Avant  for  clients,  so  long 
as  I  attended  that  court. 

It  was  at  the  Putnam  Circuit  Court  that  I  first  met  Judge 
David  Davis,  and  it  is  with  great  satisfaction  that  I  state 
that  we  were  ever  after  warm  personal  friends. 

When  John  York  Sawyer  was  circuit  judge,  it  was  said 
15 


22G  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

that  in  the  administration  of  criminal  jnstice  he  did  not 
ahvays  adhere  to  tlie  conventional  rules  of  practice.  Once, 
Gen.  Turney  was  defending  a  man  for  horse  stealing.  At 
that  time  the  punishment  for  that  crime  was  at  the  whip- 
ping post.  Just  before  noon  the  jury  brought  in  a  verdict 
of  guilt}^,  when  the  general  moved  for  a  new  trial.  Then 
it  was  that  the  dinner  bell  was  heard  at  the  little  tavern 
where  they  all  stopped,  when  the  judge  remarked :  "  Gen. 
Turney,  I  hear  the  dinner  bell  ringing  now;  we  will  ad- 
journ court  till  after  dinner,  when  I  will  hear  you  on  this 
motion,"  When  the  sheriff  had  adjourned  the  court  the 
judge  motioned  him  up  while  he  still  sat  on  the  bench,  and 
whispered :  "  While  I  am  gone  to  dinner,  you  take  this 
rascal  out  and  give  him  thirty  lashes,  and  see  that  they 
are  well  laid  on;  I  am  bound  to  break  up  horse  stealing  in 
this  circuit." 

When  the  court  opened  after  dinner,  the  judge  told  General 
Turney  he  could  go  on  with  his  motion  for  a  new  trial,  and 
he  did  so.  In  the  meantime  the  sheriff  had  obeyed  orders, 
and  after  the  whipping  had  delivered  the  cul})rit  over  to  his 
friends,  Avho  washed  oft*  his  lacerated  back,  to  which  they 
applied  a  lotion,  and  then  put  on  his  clothes,  after  which  he 
Avent  limping  down  the  street.  As  he  passed  the  court  house 
door,  he  heard  his  counsel's  voice,  and,  upon  listening,  dis- 
covered that  he  was  earnestly  pleading  for  a  new  trial  in 
the  case,  whereupon  he  rushed  into  the  court  house  and 
cried  out,  "  For  God's  sake.  General  Turney,  don't  get  a  new 
trial ;  if  they  try  me  again  they  will  convict  me  again,  and 
then  they  will  whip  me  to  death."  The  general,  of  course, 
A\'as  dumbfounded,  and  appealed  to  the  court  to  know  what 
this  all  meant.  The  judge  quietly  remarked  that  that  was 
all  right ;  that  in  order  to  make  sure  that  no  horse  thief 
should  escape  punishment  in  his  circuit,  he  had  ordered  the 
sheriff  to  whip  the  rascal  while  they  were  gone  to  dinner, 
and  he  supposed  he  had  done  so.  I  was  informed  that  horse 
thieves  did  become  scarce  in  Judge  Sawyer's  circuit. 
^  Judge  Ford,  who  related  this  event  to  me,  often  expressed 


JUDGE  CATON'S  ADDRESS.  227 

the  opinion  that  whipping  was  a  much  more  deterrent  pun- 
ishment for  crime  than  imprisonment;  that  he  never  saw  a 
criminal  sentenced  to  be  whipped  who  did  not  cringe  at  the 
sentence;  while  he  had  rarely  seen  a  prisoner  manifest 
emotion  at  being  sentenced  to  a  long  term. 

In  1S29  an  act  was  passed  which,  as  the  State  was  but 
eleven  years  old,  may  be  justly  ranked  among  our  legal  antiq- 
uities. That  act  provided  that  in  the  absence  of  the  circuit 
•judge  (Judge  Young)  the  Circuit  Court  of  Jo  Daviess 
county  might  be  held  by  three  justices  of  the  peace  of  the 
county,  and  under  this  law  the  first  circuit  court  of  that 
county  was  so  held,  and  Judge  Young  related  to  me  some 
amusing  incidents  of  the  court,  when  held  by  the  three  jus- 
tices, in  their  austere  efforts  to  maintain  the  dignity  of  the 
court,  I  have  failed  to  find  any  subsequent  act  repealing 
that  statute,  and  if  it  has  not  been  repealed  directly,  or  by 
implication,  that  circuit  may  still  be  held  by  justices  of  the 
peace,  by  reason  of  Avhich,  such  magistrates  in  Jo  Daviess 
county  may  claim  to  occupy  a  higher  plane  of  dignity  and 
jurisdiction  than  the  justices  of  the  peace  in  other  counties. 

But  those  happy  days  of  circuit  practice,  and  jolly 
nights  and  warm  and  sympathetic  friendships,  begotten  of 
such  associations,  are  now  gone  forever,  I  fear,  in  this 
State;  and  necessarily  so,  for  the  conditions  which  made 
them  possible— yes,  whicli  necessitated  them — have  passed 
away,  never  to  return.  But  it  may  be  well  that  a  record  of 
them  should  be  preserved,  so  that  they  may  not  be  entirely 
forgotten. 

I  may  mention  a  few  men  w^ho  rode  the  circuit,  before 
my  day,  whose  names,  and  of  whose  abilities,  I  heard  from 
the  lips  of  others,  though  for  very  few  of  these  can  s})ace 
be  spared  to  illuminate  this  page.  All  practiced  in  the 
southern  counties  of  the  State.  There  were  Habbard  and 
Harlan,  Kent,  Cook,  Beynolds,  Semple,  Forquer  and  Saw- 
yer. 

Of  those  whom  I  met  and  knewpersonally,  the  list  would 
be  long,  though  only  a  part  of  these  did  I  ever  meet  upon 


223  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  circuit,  and  some  of  them  I  only  knew  as  judges,  and 
not  as  practicing  lawyers.     There  were  the  four  judges  of 
the  Supreme  Court  when  I  came   to   the   State — Wilson, 
Brown,  Lock  wood  and  Smith— and  Young,  who  was  judge 
of  the  fifth  circuit.     With  all  of  these,  except  Smith,  I  sat 
upon  the  bench  of   the  Supreme  Court.     Logan,    Hardin, 
Stewart  and  Stone  I  met  at  the  first  circuit  court  I  ever  at- 
tended in  the  State,  at  Peldn,  in  1833.     Young, Ford, Mills,. 
May  and  Strode  I  first  met,  in    1834,  at  the  first  circuit 
court  ever  held  in  Cook  county.     Br(rese  I  first  met  when 
he  held  the  Circuit  Court  in   Putnam  county,  to   which  I 
have  already  referred.     I  may  be  allowed  to  mention  a  fev/ 
others  of  the  lawyers  Avho  traveled  the  circuit,  more  or  less, 
forty  years   ago:     Snyder,  Gillispie,  Browning,  Williams, 
David  J.  Balvcr,  Edward  Baker,   Shields,  Koerner,  Trum- 
bull, Morrison,  Grimshaw,    Campbell,  Wheat,  McEoberts, 
Field,  Peters,  Purple,  Dickey,  Jesse  B.  Thomas,  William 
Thomas,  AYhitney  (Lord  Coke),  McConnell,  Martin,  Linder, 
B.  C.  Cook,   Fridley,  Thompson  Campbell,  Marshall,  John 
A.  Logan,  Gridley,  Minchell,  Joshua  Allen  and  Lincoln, 
who,  it  is  scarcely  necessary  to  state,  was  always  the  very 
soul  of  hilarity  and  amusement  on  the  circuit.     His  capacity 
for  illustrating  either  wit  or  argument,  whether  upon  a  trial 
in  court  or  in  our  social  gatherings,  always  distinguished 
him  from  other  men.     His  very  presence  was  a  joy  to  all. 
The  law  and  chancery  jurisdiction  have  ever  been  exer- 
cised by  the  same  courts,  and  the  common  law  and  English 
chancery  system  of  pleading  have  ever  prevailed  in  this 
State,  with  very  few   statutory  modifications.     The   first 
modification,  for  the  purpose  of  simplifying  pleadings,  was 
made  by  a  very  early  statute,  which  authorized  actions  to  be 
commenced  on  promissory  notes  by  petition  and  summons, 
Avhich,  it  was  thought,  would  so  simplify  matters  that  every 
one  could  be  his  own  lawyer;  but  its  use  was  never  general, 
or  even  common,  and  I  have  never,  during  all  my  experience, 
known  more  than  two  actions  to  be  brought  under  it,  and 
those  not  with  very  economical  results.     Another  important 


JUDGE  CATON'S  ADDRESS.  229 

change  was  early  made  in  chancery  by  authorizing  the  com- 
plainant  in  his  bill  to  Ayaiye  the  oath  to  the  answer,  when 
the  answer  should  not  bo  cyidence;  and  another  change, 
authorizing  a  defendant  to  attach  to  his  answer  interrogato- 
ries, which  the  complainant  must  answer  under  oath.  Under 
this  last  proyision,  the  courts  had  been  in  the  habit  of  grant- 
ing affirmatiye  relief  to  the  defendant,  and  this  question  hap- 
pened to  be  presented  in  a  case  of  Ballance  v.  Underbill,  which 
was  the  first  case  eyer  assigned  to  me  in  which  to  write  an 
opinion,  and  I  wa^ote  it,  reyersing  that  part  of  the  decree 
which  gaye  to  the  defendant  affirmatiye  relief,  affirming  all 
the  rest;  and  on  this  point  I  had  my  first  struggle  with  my 
associates,  who  said  it  had  been  the  uniform  practice  to  grant 
such  relief  in  similar  cases. 

At  that  time  Judge  Pope  of  the  United  States  District 
Court,  at  Springfield,  was  in  the  habit,  when  he  had  leisure, 
of  dropping  into  the  conference  room  as  freely  as  if  he  were 
a  member  of  the  court,  without  at  all  interrupting  the  de- 
liberations then  progressing;  and  he  happened  to  come  in 
while  we  were  considering  this  controyerted  question.  He 
seemed  to  listen  attentively  to  the  discussion,  while  I  was 
trying  to  maintain  my  position  against  all  of  the  others. 
At  length,  the  conference  adjourned  without  taking  a  yote, 
and  we  separated.  When  Ave  were  passing  through  the 
library  on  our  way  out,  the  judge  came  up  to  me  and  patted 
me  on  the  back,  saying,  "  My  boy,  you  are  right.  Stick  to 
them,  and  they  will  come  to  you  at  last.  Come,  go  to  my 
room  and  emoke  a  pipe  with  me."  I  did  stick  to  them,  and 
they  did  come  to  me  at  last,  and  voted  unanimously  for  the 
opinion;  and  the  rule  Avas  then  adopted  requiring  a  cross- 
])ill  to  be  filed  in  order  to  authorize  affirmative  relief  to  be 
granted  to  the  defendant,  which  has  ever  since  prevailed,  I 
think,  Avith  the  general  approval  of  the  bar. 

By  practice  sanctioned  by  courts  and  lawyers,  much 
of  the  verbosity  and  formalities  required  in  the  English 
courts,  in  both  the  common  laAv  and  chancery  pleading,  Avas 
eliminated  in  carlv  times,  and  I  think,  Avith  marked  advan- 


230  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

tages ;  while  all  that  was  substantive,  and  necessary  fairly 
to  advise  the  opposite  party  of  what  he  had  to  meet, 
was  retained.  In  this  way  has  gradually  grown  up  a 
change  in  our  system  of  pleading  which  greatly  simplilies 
the  work  of  the  profession  and  the  courts ;  and  the  system 
thus  wrought  out  has  tended  to  promote  the  ends  of  justice, 
as  much,  at  least,  as  has  been  done  by  the  adoption  of  codes 
in  other  States  which  were  designed  to  accomplish  the 
same  end.  Whether  there  has  been  a  relapse  of  the  old 
formalities  and  redundancy  of  words  since  my  time,  I  can 
not  say ;  on  that  subject  you  are  the  best  informed.  Almost 
from  the  beginning,  it  has  ceased  to  be  necessary  for  a  bill 
in  chancery  to  contain  a  thricetold  tale,  as  in  the  old  forms 
containing  the  stating,  the  charging  and  the  interrogating 
part,  in  each  of  which  the  facts  had  to  be  repeated.  In  my 
first  bill,  with  great  laI)or,  I  followed  this  nile ;  Init  ever 
since,  I  have  deemed  it  better  to  simply  state  the  facts  upon 
which  I  relied  for  relief  in  the  shortest  and  clearest  manner 
possible.  If  an  unnecessary  fact  be  stated  in  a  pleading,  it 
may  some  time  rise  up  to  pester  the  pleader.  I  early  learned 
to  appreciate  the  importance  of  understanding  the  reasons 
why  certain  rules  of  laAv  had  been  adopted,  not  only  from 
my  circuit  practice,  but  from  my  general  practice  as  well. 
The  reasons  of  the  law  are  the  soul  and  essence  of  the  law. 
During  my  time,  that  is,  up  to  the  time  I  resigned  the 
chief  justiceship  of  our  Supreme  Court  in  1864,  the  rules  of 
practice  or  modes  of  administering  justice,  to  a  large  extent, 
remained  unchanged.  Since  then  important  changes  have 
been  made,  with  which  I  have  not  kept  pace  as  a  law3'^er  in 
active  practice  necessarily  would  have  done.  I  was  forcibly 
reminded  of  this  a  number  of  years  ago,  when  I  went  into 
the  Circuit  Court  in  Chicago,  where  a  case  was  pending  in 
which  a  corporation  in  which  I  had  some  interest  was 
plaintiff,  and  two  individual  parties  were  defendants.  When 
I  went  in,  a  motion  was  being  argued  for  a  continuance  by 
the  defendants.  As  the  plaintiff's  case  was  conducted  by  a 
young  lawyer,  and  I  thought  I  saw  some  indications  that  he 


JUDGE  CATOX'S  ADDRESS.  231 

Wcas  getting  the  worst  of  it,  I  turned  in  to  help  liim,  and  in 
the  course  of  my  remarks,  Judge  Murphy,  who  presided,  dis- 
covered that  I  was  ignorant  of  ahite  statute,  when  he  kindly 
suggested  that  a  statute  had  changed  the  hiw  ;  that  we  might 
take  judgment  against  one  of  the  two  joint  defendants,  and 
not  against  the  other.  This  astonished  me,  and  I  felt  like 
exclaiming  with  an  Indiana  attorney  long  ago,  as  related  by 
Chief  Justice  Wilson.  He  reported  that  a  case  was  pending 
before  an  Illinois  justice  of  the  peace,  down  on  the  Wabash, 
in  which  an  Illinois  lawyer  was  eni2:ao;ed  on  one  side  and  an 
Indiana  lawyer  on  the  other.  In  the  course  of  the  trial,  the 
Illinois  law>^er  asserted  a  jirincijile  of  law  Avhich  was  denied 
by  the  IIo<3sier,  who  denounced  it  as  the  most  absurd  propo- 
sition ever  heard  of  in  any  civilized  community,  and  that  it 
never  could  be  the  law  except  among  barbarians.  Upon 
this,  his  opponent  placed  before  him  the  Illinois  statutes, 
which  declared  the  disputed  proposition  to  be  the  law  of 
this  State.  After  the  Indianian  recovered  from  the  shock 
which  this  statute  produced  upon  his  nerve  he  straightened 
himself  up,  and  with  great  solemnity  exclaimed  :  '"  May  it 
please  the  court :  When  I  hear  of  the  assembling  of  a  Legis- 
lature in  one  of  these  Western  States,  it  reminds  me  of  a  cry 
of  fire  in  a  populous  city.  No  one  knoAvs  when  he  is  safe ; 
no  man  can  tell  where  the  ruin  will  end."  IIoAvever,  as  the 
effect  of  the  statute  might  be  in  my  favor,  I  could  not  com- 
plain of  it,  and  a  little  reflection  convinced  me  that  it  might 
have  been  enacted  in  the  interest  of  justice. 

Perhaps  the  most  important  changes  which  have  taken 
place  since  my  time,  b}^  direct  legislation,  are  in  the  law  of 
evidence.  During  all  the  time  when  I  was  connected  with 
the  administration  of  the  law,  it  was  assumed  that  no  one 
who  had  a  direct  pecuniary  interest  in  the  event  of  a  trial 
could  tell  the  truth  Avhen  under  oath;  hence  it  was  a  set- 
tled rule  that  no  one  who  had  the  slighest  pecuniary  inter- 
est in  the  result  of  a  trial  could  be  a  witness,  and  for  the 
reason  that  it  was  assumed  that  such  interest  would  induce 
him  to  testify  falsely.     No  position  in  life,  no  established 


232       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

character  for  rectitude,  no  confidence  which  all  members 
of  the  community  might  have  in  the  uprightness  of  any 
man — earned  by  long  years  of  integrity  and  probit_y — coukl 
relieve  him  from  the  suspicion  which  the  law  arbitrarily 
stamped  upon  him,  while  no  one  dreamed  that  this  legal 
suspicion  of  unreliability  cast  the  remotest  reflection  upon 
his  integrity.  We  simply  found  the  law  to  be  so,  and  that 
it  had  been  so,  time  out  of  mind,  and  no  thought  of  the  in- 
justice of  such  a  rule  ever  dawned  upon  us;  no  lawyer  ever 
thought  of  questioning  its  propriety,  or  even  suggested 
a  doubt  that  it  was  not  the  safest  way  for  the  ascertain- 
ment of  truth.  Ko  judge  ever  thought  of  intimating,  in  an 
opinion,  that  a  regret  was  felt  that  the  sources  of  light 
which  might  develop  the  most  important  facts  had  been 
thus  shut  out,  and  that  court  or  jury  liad  been  left  in  dark- 
ness where  it  was  evident  that  the  brightest  light  might 
have  been  thrown  upon  an  important  transaction,  from 
sources  of  which  the  most  skeptical  could  entertain  no 
moral  doubt. 

This  serves  to  show  what  curious  beings  we  are,  and  how 
firmly  we  are  wedded  to  old  customs  and  old  modes  of 
thought.  "We  are  inclined  to  look  upon  the  ways  of  our 
ancestors  as  sacred,  and  therefore  as  just.  The  statute  al- 
lowing parties  in  interest  to  testify  in  courts  of  justice 
caused  a  radical  change  in  the  administration  of  the  law, 
and  while  it  undoubtedly  opened  a  wide  door  to  the  induce- 
ment to  perjury,  it  as  clearly  afforded  a  new  means  for  the 
ascertainment  of  truth.  It  was  a  revolution,  in  fact,  and 
when  once  started  it  swept  over  this  and  other  countries 
with  astonishing  velocity.  England,  whence  we  derive 
most  of  the  principles  which  have  governed  us  in  the  ad- 
ministration of  justice,  and  whose  conservatism  has  prompted 
her  to  move  slowly  and  cautiously  in  the  adoption  of  re- 
forms, cordially  embraced  this  reform  with  a  general  appro- 
bation of  the  courts  and  of  the  legal  profession;  and  the 
e-entlemenof  this  association  can  tell  better  than  I  can  what 
has  been  its  effect  upon  the  administration  of  justice,  though 


JUDGE  CATON'S  ADDRESS.  233 

I  am  told  that  it  has  met  with  general  appro])atioii ;  but  I 
])resume  that  the  change  was  more  cordially  accepted  by 
the  younger  members  of  the  bar  and  of  the  courts  than  by 
the  older  ones,  into  whose  very  being  the  old  system  had 
struck  so  deep  a  root  by  long  practice  and  accustomed  mode 
of  thinking. 

The  change  made  in  the  criminal  law  which  allowed  a 
prisoner  to  testify  in  his  own  behalf  upon  his  trial,  I  think, 
from  what  I  heard  about  the  time  the  change  was  made, 
did  not  meet  with  quite  so  ready  an  acceptance.  I  heard  it 
characterized  as  a  legislative  device  to  promote  the  crime  of 
perjury  by  offering  a  reward,  often  of  inestimable  value,  for 
the  commission  of  that  crime.  There  may  be,  and  prob- 
ably is,  some  truth  in  this  criticism.  The  inducement  for  a 
guilty  man  to  testify  in  such  a  way  as  to  shield  him  from 
the  punishment  to  be  inflicted  for  a  crime  committed,  is 
undoubtedly  very  great,  and  that  premium  is  no  doubt  very 
often  offered  to  those  on  wliose  consciences  the  oblio-ations 
of  an  oath  would  press  very  lightly.  True,  courts  and 
juries  might  not  feel  themselves  obliged  to  give  the  same 
credence  to  the  testimony  of  a  prisoner  in  his  own  behalf, 
as  they  would  to  that  of  an  indifferent  person,  but  tliat 
could  not  remove  the  temptation  to  perjurv  or  the  danger 
from  it.  Again,  it  presents  a  danger  which  must  ever 
menace  him  who  lias  some  conscience  left,  and  so,  we  may 
presume,  is  not  a  hardened  criminal,  and  who  refuses  to  go 
upon  the  stand  and  commit  perjury  in  order  to  escape 
punishment  for  crime.  Although  courts  and  counsel  are 
forbidden  to  urge  this  fact  in  order  to  create  a  prejudice 
against  the  presumption  of  innocence,  it  would  take  some- 
thing stronger  than  the  mandate  of  a  statute  to  prevent  a 
jury  from  noticing  it  and  thinking  about  it,  and  in  fact, 
from  being  influenced  by  it.  In  that  way,  it  does  undoubt- 
edly have  a  prejudicial  influence  upon  the  cases  of  the  least 
hardened  criminals. 

The  passage  of  our  statute  which  opened  the  doors  of  the 
learned  professions  and  other  occupations  to  females,  was 


234      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

another  change  from  the  old  modes  of  thought  and  ]->roceed- 
ing  in  our  profession.  Of  the  thousands  of  applications, 
during  my  time,  of  candidates  for  admission  to  the  bar,  not 
one  was  a  female.  AVhile  we  had  no  statute  expressly  for- 
bidding this,  it  was  so  generally  accepted  as  the  law  that 
women  were  ineligible  to  the  profession,  that  no  one  seems 
to  have  thought  of  making  such  an  application,  no  matter 
how  eminent  may  have  been  her  legal  qualifications.  But 
let  not  the  present  generation  boast  that  it  was  the  first  to 
discover  her  fitness  or  capabilities  to  study  or  comprehend 
those  principles  which  would  qualify  her  for  professional 
life.  That  was  known  and  recognized  and  acted  upon  long 
ages  ago. 

The  ancients  were  not  destitute  of  distinguished  women 
in  the  medical  profession.  Agnodice,  an  Athenian  maiden, 
assumed  the  garb  of  a  man  to  enable  her  to  study  medicine, 
in  which  profession  she  became  famous.  As  her  popularity 
and  her  practice  greatly  increased,  the  male  physicians 
were  filled  with  envy,  and  accused  her  of  corruption  before 
the  tribunal,  to  whom  she  confessed  her  sex;  when  a  law 
was  immediately  made  allowing  all  freeborn  women  to 
study  midwifery,  to  which  branch  of  the  practice  she  was 
most  devoted.     She  was  born  506  years  B.  C. 

Hortense,  not  a  Roman  matron  but  a  young  lady  of  the 
Eoman  Empire,  ^yas  the  most  learned  lawyer  of  her  time, 
when  the  science  of  the  law  absorbed  the  thoughts  and  studies 
of  the  most  learned  and  talented  of  that  great  people.  At 
the  age  of  twenty-one  years,  she  had  already  acquired  such 
fame  that  she  was  pLiced  at  the  head  of  the  most  distin- 
guished of  the  Roman  law  schools,  and  it  was  said  of  her 
that  her  beauty  was  so  great  that  the  beholder  who  gazed 
upon  her  could  think  of  nothing  else,  until  she  opened  her 
mouth  to  speak,  when  the  charm  of  her  eloquence  dispelled 
all  other  thoughts,  and  her  beauty  was  forgotten  amid  the 
fascinating  influences  of  her  address  and  the  irresistible 
force  of  her  reasoning. 

She  was  the  daughter   of  Quintus  Hortensius,  a  great 


JUDGE  CATON'S  ADDRESS.  2o.3 

orator  and  lawyer.  She  was  born  eighty-five  years  B.  C. 
The  speech  Avhich  she  made  in  defense  of  the  1,400  Roman 
matrons  against  a  special  tax,  proposed  by  the  Triumvirs, 
has  come  down  to  us  in  the  languao-e  in  which  it  was  uttered, 
and  well  sustains  her  reputation  as  an  orator;  and  she  suc- 
ceeded so  well  that  1,000  of  her  clients  were  exempted  from 
the  tax. 

These  must  serve  as  examples  of  women  who  acquired 
great  distinction,  and  displayed  great  ability  in  professional 
life  among  the  ancients. 

While  there  have  been  many  female  sovereigns  in  the  past 
who  have  illustrated  their  capacity  to  stud}'  and  understand 
the  sciences  of  statesmanship  and  of  jurisprudence,  public 
sentiment,  begotten  of  prejudice  and  egotism,  has  practically 
closed  against  women  the  doors  which  lead  to  what  are 
called  the  learned  professions,  until  within  the  last  few  vears, 
while  their  great  abilities  in  the  conduct  of  affairs  in  which 
they  were  permitted  to  engage  has  been  a  thousand  times 
illustrated  by  the  most  pronounced  success.  When  our  own 
Legislature  passed  a  law  authorizing  women  to  engage  in 
the  different  occupations  on  the  same  plane  of  right  with 
men,  many  of  the  old  school  of  thought  anticipated  that  its 
effects  might  be  calamitous.  For  myself,  I  did  not  partici- 
pate in  this  apprehension.  Xo  doubt,  early  memories  and 
associations  may  have  had  their  influence  upon  me  in  this 
matter.  I  was  born  and  brought  up  in  the  Society  of 
Friends,  a  religious  denomination  in  which  the  endowments 
and  qualifications  of  women  were  always  distinctly  recog- 
nized. They  not  only  took  part  in  the  business  meetings  of 
the  society,  but  their  right  to  preach  in  the  religious  meet- 
ings was  recognized  equally  with  that  of  men;  and  in  my 
boyhood,  when  I  was  so  situated  that  I  could  attend  those 
religious  meetings,  I  heard  sermons  preached  by  women,  and 
pra3'ers  made  by  them,  which  made  as  lasting  an  impression 
upon  my  young  mind  as  did  ever  those  of  men.  The  neat, 
plain  dress  of  such  a  speaker,  her  sweet,  benign  countenance, 
her  charming  gentleness  of  manners,  her  soft  and  winning  per- 


236      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

suasions,  Avere  calculated  to  win  the  heart  of  the  hearer  when 
the  discourse  of  a  man  would  have  sounded  harsh  and  almost 
repulsive.  It  seemed  to  me  that  she  knew  better  how  to 
touch  those  strings  which  vibrate  from  heart  to  heart,  and 
especially  those  which  reached  down  deep  into  the  3'outhful 
soul,  than  did  the  other  sex;  and  this  loving  and  benign 
influence  was  understood,  appreciated  and  utilized  by  that 
denomination  of  Christians;  and  I  have  no  doubt  that  a 
memory  of  this  had  much  to  do  with  shaping  not  only  my 
feelings  but  my  judgment  on  the  subject. 

I  presume  numerically  the  medical  profession  has  been 
augmented  much  more  by  lady  practitioners  than  has  the 
legal  profession,  and  this  may  result  from  some  peculiar 
endowments  which  they  possess  for  the  former.  Their 
sympathetic  nature,  their  natural  gentleness,  their  quick 
perceptions,  come  to  the  aid  of  their  judgment  and  their 
learning,  and  seem  to  endow  them  especiallj"  for  the  prac- 
tice of  the  healing  art;  while  the  practice  of  the  law  seems 
to  partake  more  of  the  belligerent  character,  and  so  may  be 
thought  to  require  a  sterner  nature  and  disposition.  This, 
I  say,  may  be  one  reason  why  fewer  ladies  devote  them- 
selves to  the  legal  than  to  the  medical  profession.  Why  so 
few  devote  themselves  to  the  cure  of  souls,  I  will  not 
attempt  to  say;  but  I  may  assert,  without  fear  of  contradic- 
tion, that  a  large  proportion  of  those  who  have  joined  the  cler- 
ical profession  have  met  with  marked  success.  But  it  is  not 
in  professional  life  alone  that  women  have  abundantly  vin- 
dicated their  right  to  the  highest  respect  and  consideration. 
The  utility  of  their  efforts  in  the  moral  world  stands  forth 
so  conspicuously  as  to  challenge  the  admiration  of  mankind, 
and  I  may  be  permitted  to  point  with  pride  to  their  work 
and  recognition  in  the  Columbian  Exposition,  in  connection 
with  wdiich  their  labors  and  their  influence  are  felt  in  all 
civilized  countries. 

Gentlemen,  I  speak  to  you  as  from  a  former  generation. 
AVe  were  once  young,  vigorous  and  ambitious.  We  sought 
to  fill  the  places  to  which  fortune  had  assigned  us,  accord- 


JUDGE  CATON'S  ADDRESS.  237 

iiig  to  the  best  of  our  ability,  so  that  the  worhl  iiiig-ht  l)e 
the  better  for  our  presence.  ^Ye  a])i)reciate{l  that  we  were 
members  of  a  high  and  an  honorable  profession,  with 
corresponding  responsibilities.  History  shows  that  law- 
yers are  more  frequently  called  upon  by  tbeir  fellow-men 
than  members  of  any  other  profession  or  calling  to  take 
part  in  the  conduct  of  public  affairs ;  and  b}^  this  is  the 
measure  of  their  responsibility  fixed.  So  it  has  been  in  the 
past,  so  is  it  now,  and  so  Avill  it  be  in  the  future.  Whatever 
flippant  expressions  may  be  heard  from  the  ignorant,  the 
prejudiced  or  the  envious,  to  the  contrary,  this  fact  affords 
us  the  comforting  assurance  that  the  integrity,  the  ability 
and  the  learning  of  the  profession  are  fully  appreciated 
and  valued  by  the  community  at  large  all  over  the  country; 
and  this  of  itself  should  act  as  an  inspiration  to  every  mem- 
ber of  the  profession  to  strive  with  his  utmost  energv  to 
maintain  that  high  standard  of  morality  and  integrity 
which  has  secured  the  confidence  of  our  fellow-men,  and 
enabled  us  to  fill  out  the  measure  of  usefulness  which  our 
place  in  society  has  rendered  possible.  Should  the  time 
ever  come  when  the  profession  of  the  law  shall  be  dragged 
down  by  its  votaries  from  the  position  of  a  noble  and  an 
honorable  profession  to  that  of  a  venal  trade,  then  the  name 
of  law^yer  will  become  a  title  of  reproach  instead  of  an 
honorable  appellation. 

But  feAV  are  now  left  who  commenced  the  struggle  of  pro- 
fessional life  with  me,  animated  by  hope  and  ambition, 
inspired  by  indomitable  will  and  a  fixed  purpose  to  succeed. 
I  have  seen  them  drop  out  one  by  one  as  we  traveled  the 
road  of  life,  side  by  side,  till  now  Init  isolated  instances  are 
left  of  those  who  can  tell  from  memory  the  incidents  of  the 
distant  past ;  but  they  have  left  dotted  along  that  way 
beacons  of  brilliant  light,  which  have  served  to  guide  their 
successors,  and  will  serve  to  guide  those  who  shall  still  come, 
later,  to  the  goal  of  honorable  distinction  and  of  usefulness. 
It  is  one  of  the  happiest  hopes  that  I  can  now  entertain  that 
honesty  and  honor,  usefulness  and  learning  will  be  upheld  in 


238  EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

the  future  as  in  the  past,  and  that  the  name  of  our  profession 
may  continue  to  be  the  synonym  of  all  that  is  noble,  useful 
and  energetic.  The  comforting  hope  of  the  past  must  rest 
in  the  future.  So  can  the  younger  men  who  are  just  coming 
upon  the  stage  of  life  most  honor  those  who  have  gone  be- 
fore them. 


REMINISCENCES  OF  THE  CHICAGO  BAR. 

ADDRESS    DELIVERED    BEFORE    THE    CHICAGO    BAR    ASSOCIATION 
FEBRUARY    11,   1S93,    BY    JOHN    DEAN    CATON. 

3Ir.  President  and    Gentlemen  of  the   Bar   Association  of 

Chicago: 

I  am  liappy  to  accept  your  kind  invitation  to  meet  you 
here  at  this  time,  and  to  say  a  few  words  about  the  earliest 
history  of  our  profession  in  Chicago.  It  is  indeed  grateful 
to  find  myself  surrounded  by  a  legal  atmospliere,  in  the  pres- 
ence of  gentlemen  of  the  profession  which  I  love  so  well,  in 
a  city  whicli  now  stands  where  stood  a  little  hamlet  sixty 
years  ago,  and  where  I  first  commenced  my  professional 
career,  and  where  it  was  my  fortune  to  commence  the  first 
action  ever  brought  in  a  court  of  record  in  Cook  county. 
I  think  I  may  be  pardoned  for  feeling  a  certain  measure  of 
l)ride  in  having  had  my  name  thus  associated  with  the  first 
judicial  records  of  this  county.  There  was  no  city  here 
then,  nor  even  a  village  corporation;  for  it  was  six  weeks 
after  my  arrival  before  150  male  inhabitants  over  the  age 
of  twenty-one  3^ears  could  be  mustered  in  the  place — a 
statutory  condition  necessary  to  form  a  village  corporation. 
It  so  happened  that  I  was  appointed  the  first  corporation 
attorney,  which  was  the  first  office  I  ever  held  in  this  State. 
Although  the  emoluments  were  very  small,  I  well  remem- 
ber that  they  were  very  opportune,  and  were  probably  as 
gratefully  received  as  have  been  those  of  any  legal  repre- 
sentative of  the  town  or  city  since. 

Although  as  early  as  1830  the  statute  fixed  the  terms  of 
the  Circuit  Court  in  Cook  County  and  made  it  the  duty  of 


240  EARLY   BENCH  AND  BAR  OF  ILLINOIS. 

Judge  Young,  of  the  Fifth  Circuit,  to  hohl  the  court  here, 
of  which  CoL  R.  J.  Hamilton  was  the  clerk,  yet  no  case  of 
a  civil  or  criminal  nature  had  arisen  to  be  placed  upon  his 
docket  till  more  than  two  weeks  after  my  arrival,  and  the 
judge,  having  been  informed  by  the  clerk  of  this  fact,  had 
not  appeared  to  open  the  court. 

The  first  case  that  was  ever  entered  upon  the  docket  of 
the  Circuit  Court  of  this  county  was  a  criminal  case,  and 
the  first  fee  I  ever  received  was  for  prosecuting  a  thief  who 
had  stolen  $36  of  Bellows  Falls  money  from  a  Mr.  Hatch, 
who  employed  me  to  prosecute  him  and  recover  the  money, 
which  I  did.  I  received  $10  for  this  service,  the  first  fee  I 
ever  received  in  this  State,  and  I  never  received  a  fee  with 
more  satisfaction,  for  it  just  paid  my  two  weeks  board  up 
to  that  time — to  have  paid  which  would  have  exhausted 
my  funds.  Giles  Spring,  whose  arrival  had  preceded  mine 
by  a  few  days,  and  Colonel  Hamilton  defended  the  case 
before  the  magistrate,  and  then  it  was  that  both  Spring  and 
myself  had  an  opportunity  of  being  heard  before  a  Chicago 
audience  (for  nearly  every  man  and  boy  in  town  were  pres- 
ent), and  we  both  made  our  speeches  as  much  to  the  people 
as  to  the  magistrate,  who  bound  the  prisoner  over  to  the 
grand  jury;  and  so  Colonel  Hamilton  had  the  pleasure  or 
the  pain  of  writing  down  his  client's  name,  the  first  upon 
his  docket,  and  filing  his  recognizance. 

The  second  action  upon  that  docket  was  an  attachment 
case,  which  was  commenced  by  me.  Of  course  I  was  very 
glad  to  get  it.  Spring  necessarily  was  employed  on  the 
other  side,  and  he  beat  me  on  the  trial  before  the  first  petit 
jury  impaneled  in  the  Circuit  Court  of  this  county  and  got 
a  good  fee,  for  those  times,  Avhile  I  had  to  be  content  with  a 
$5  retainer. 

As  neither  Spring  nor  myself  received  our  licenses  to 
practice  in  this  State  till  October  following — when  I  went 
on  horseback  to  Greenville,  in  Bond  county,  to  obtain  them 
— we  signed  our  clients' names  to  precipes,  pleadings  and  such 


JUDGE  CATON'S  ADDRESS.  241 

otbor  papers  as  otherwise  we  ^yould  have  signed  as  attor- 
neys. 

When  we  remember  that  in  the  absence  of  panics  and 
similar  financial  convulsions  the  amount  of  legal  business  is 
a  safe  criterion  by  which  to  determine  the  amount  of  com- 
mercial transactions,  the  entire  absence  of  litigation  in  the 
hiffher  courts  would  indicate  that  little  commercial  business 
had  been  carried  on  here  up  to  the  time  of  which  I  speak, 
and  the  entire  absence  of  crime  which  had  to  be  dealt  with 
by  the  Circuit  Court  speaks  well  for  the  psacs  and  good 
order  of  the  community.  In  truth,  nothing  had  occurred 
which  could  not  be  dealt  with  by  justices  of  the  peace,  and 
three  such  officers  represented  all  the  judicial  force  in  the 
place,  namely,  Isaac  Harmon,  Russell  E.  Heacock  and 
Archibald  Clybourne.  Only  one  of  them,  Harmon,  kept 
an  office,  and  he  did  nearly  all  the  business.  Mr.  Ileacock 
was  the  only  lawver  of  the  three,  and  he  was  a  ver}^  good 
lawyer  too;  but  in  the  absence  of  any  professional  business 
he  opened  a  carpenter  shop,  a  trade  which  he  learned  when 
young;  his  shop,  built  of  logs,  was  situated  on  the  corner  of 
South  Water  and  State  streets,  and  it  was  from  him  I  procured 
the  warrant  for  the  arrest  of  the  criminal  alread}"  spoken  of. 
The  criminal  was  brought  in  just  at  dusk,  and  the  justice 
took  his  seat  on  a  saw  horse  by  the  side  of  his  work  bench, 
upon  which  he  placed  a  lighted  tallow  dip,  held  in  position 
by  four  nails  driven  into  a  block  of  wood. 

This  particularity  can  only  be  justified  by  my  desire  to 
enable  you  to  understand  the  judicial  position  at  the  very 
commencement  of  its  history  in  this  city,  and  to  enable  you 
to  draw  a  contrast  between  then  and  now.  At  that  time 
there  was  already  an  aj^preciable  amount  of  business  in  the 
Circuit  Court  of  La  Salle  county,  and  especially  in  Putnam 
county,  but  there  were  no  resident  lawyers  in  either,  and 
clients  depended  upon  the  circuit  riders  for  the  conduct  of 
their  cases. 

These  lawyers  were  a  class  who  traveled  the  circuit  Avith 
the  judge,  and  who  had  to  practice  law  on  the  wing,  as  it 

16 


242  E^\JILY  BENCH  .\:ND  BAR  OF  ILLINOIS. 

were,  and  who  received  their  retainers  about  the  time  court 
opened  and  frequently  had  to  learn  their  cases  as  the  trials 
progressed.  Their  experience  in  this  mode  of  practicing  lavv' 
enabled  them  to  do  this  with  extraordinary  facility  and  suc- 
cess. As  a  general,  rule  they  were  well  grounded  in  the 
fundamental  principles  of  the  law;  and  habit  had  enabled 
them  to  think  quickly  and  accurately  and  without  confusion 
when  required  to  pass  from  one  subject  of  thought  to  an- 
other. 

The  first  Circuit  Court  which  I  ever  attended  in  this  State 
was  in  October,  1833,  at  Pekin,  in  Tazewell  county,  where  I 
first  met  Judge  Lockwood,  who  held  the  court;  John  J.  Har- 
din, State's  attorney;  Stephen  T.  Logan,  John  F.  Stuart  and 
Dan  Stone,  of  Spring  held,  who  were  the  first  circuit  riders 
I  ever  met.  I  next  attended  a  Circuit  Court  at  Greenville, 
in  Bond  county,  which  was  held  b}^  Judge  Smith  of  the 
Supreme  Court,  also  in  October,  1833,  where  I  first  met 
Jesse  B.  Thomas,  who  was  State's  attorney  in  that  circuit. 
The  next  Circuit  Court  which  I  attended  was  the  first  ever 
held  in  Cook  county,  in  May,  1831:.  Judge  Young  held  the 
court.  Thomas  Ford,  of  Quincy,  was  State's  attorney.  The 
foreign  lawyers  in  attendance  were  William  L.  May,  of 
Springfield;  Benjamin  Mills  and  James  M.  Strode,  of  Galena. 
I  do  not  remember  the  number  of  cases  on  the  docket 
at  that  term.  Spring  and  I  were  engaged  in  them  all, 
on  opposite  sides,  excepting  one  in  which  Mr.  Ford  rei> 
resented  the  United  States.  I  had  brouo-ht  a  Avrit  of  habeas 
corpus  directed  to  the  commander  of  the  fort  here  to  pro- 
cure the  discharge  of  a  soldier  who  had  been  enlisted  be- 
fore he  was  eighteen  years  old  without  the  consent  of  his 
father. 

The  State  courts  at  that  time  exercised  that  jurisdiction, 
even  where  the  Federal  courts  were  conveniently  near,  as  I 
showed  by  a  case  in  Johnson's  reports.  The  question  of 
jurisdiction  was  not  seriously  contested,  but  the  court  held 
that  the  onus  lay  upon  me  to  prove  that  the  father  had  not 
consontod  to  the  enlistment,  and  because  I  did  not  succeed 


JUDGE  CATON'S  ADDRESS.  243 

in  doing-  this,  clearly,  the  soldier  Avas  remanded.  I  suppose 
that  no  State  court  at  this  time  would  entertain  jurisdiction 
in  such  a  case. 

Six  days  after  the  opening  of  the  Circuit  Court  here  the 
court  was  required  to  be  opened  at  Ottawa,  in  La  Salle  county, 
which  is  eighty-four  miles  distant.  It  required  two  days' 
riding  on  horseback  to  reach  that  place,  and  as  half  a  day  of 
the  term  time  was  given  up  to  a  political  discussion  between 
Colonel  May  and  Mr.  Mills,  rival  candidates  for  Congress, 
practically  but  three  days  were  allowed  to  dispatch  the  busi- 
ness in  court,  but  that  proved  to  be  amply  sufficient.  Ford, 
State's  attorney,  was  called  upon  by  the  judge  to  charge  the 
grand  jury.  This  gave  him  an  opportunity  to  be  first  heard 
in  Chicago,  where  he  had  never  been  before.  I  went  to 
Ottawa  with  the  judge  and  lawyers  who  had  come  herewith 
him  and  attended  that  court.  There  were  several  more  cases 
on  that  docket  than  had  been  on  this,  but  I  obtained  but 
little  business  tliere,  although  I  had  been  there  twice  before, 
and  had  formed  a  good  many  acquaintances,  having  on  the 
previous  4th  of  March  attended,  as  a  delegate  from  Chicago, 
the  first  political  convention  ever  held  in  Illinois.  In  that 
convention  we  nominated  one  candidate  for  the  State  Senate 
and  one  for  representative  in  the  General  Assembly  to 
represent  all  the  northern  part  of  the  State  as  far  south  as 
Peoria,  including  that  county.  I  did  not  anticipate  much 
pecuniary  result  from  my  attendance  upon  these  various 
courts 'which  I  have  mentioned,  but  it  served  to  extend  my 
acquaintance  and  especially  to  familiarize  myself  with  the 
practice  of  the  courts  in  this  State,  and  the  mode  of  doing- 
business  here,  w^hich  I  early  learned  was  widely  different 
from  that  which  prevailed  in  New  York,  where  I  had 
studied  my  profession. 

The  day  after  my  first  arrival  in  Chicago  I  called  at  Col- 
onel Hamilton's  office.  He  then  held  the  offices  of  clerk 
of  the  Circuit  Court,  clerk  of  the  County  Commissioners' 
Court,  and  judge  of  the  Probate  Court.  He  received  me 
with  a  cordiality  and  welcome  which  were  one  ■  of  his  dis- 


244      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

ting-uishine:  characteristics  and  secured  for  him  the  warm 
friendship  of  all  with  whom  he  came  in  contact.  He  invited 
me  to  come  to  his  office  to  do  any  writing  I  had  occasion  to 
do  and  kindly  loaned  me  the  use  of  his  copy  of  the  statutes  of 
1833,  which  I  there  first  read,  and,  I  may  add,  carefully 
studied.  In  New  York  the  statute  gives  certain  fees  to  the 
successful  lawyer,  which  must  be  paid  him  by  the  unsuc- 
cessful party,  because  it  is  deemed  but  just  that  he  who 
wrongfully  causes  litigation  should  pay  the  cost  which  he 
has  compelled  by  his  wrongful  acts  of  omission  or  commis- 
sion, and  I  was  greatly  disappointed  to  find  that  the  fee  bill 
provided  no  compensation  to  be  paid  to  the  lawyer  of  the 
successful  party;  and  I  may  now  say  that  in  my  opinion  the 
rule  which  compels  the  party  in  fault  to  pay  at  least  a  part 
of  the  expense  which  he  compels  the  party  who  has  suffered 
wrong  to  incur,  in  order  to  recover  his  rights,  is  but  just, 
and  consistent  with  sound  policy.  The  law  which  exempts 
a  man  from  paying  anj^thing  which  he  has  compelled  the 
injured  party  to  incur,  encourages  litigation. 

This  is  not  the  only  law  which  seems  to  have  been  made 
in  the  interests  of  wrong-doers.  In  our  Criminal  Code  the 
State  has  placed  itself  to  a  great  disadvantage  in  the  prose- 
cution of  criminals,  by  giving  them  much  greater  chances 
for  escape  than  the  State  has  for  conviction.  I  repeat  that 
many  of  our  law^s  seem  to  be  made  for  the  benefit  of  delin- 
quents and  criminals.  ISTotwithstanding  my  disappointment 
at  not  finding  in  the  fee  bill  an  allowance  for  the  successfid 
lawyer,  I  finally  contented  myself  with  the  reflection  that 
if  others  could  stand  it  I  could,  and  directed  my  studies  to 
the  rest  of  the  statute. 

I  may  mention  one  other  case  which  I  had  to  conduct  in 
1833.  With  the  eastern  immigrants  had  come  a  number 
of  negroes,  perhaps  eight  or  ten.  Of  course,  coming  from 
the  free  States,  they  had  no  free  papers,  as  our  statute  re- 
quired, which  had  been  framed  upon  the  manifest  assump- 
tion that  all  negroes  Avere  born  slaves  and  that  such  must 
be  the  legal  presumption,  only  to  be  overcome  by  document- 


JUDGE  CATON'S  ADDRESS.  245 

ary  evidence  sliOAviiig  their  right  to  freedom.  Some  per- 
son in  the  town,  badly  troubled  with  what  we  then  called 
"  negrophobia  "  on  the  brain,  swore  out  warrants  against 
every  negro  here  and  had  them  brought  before  Squire  Har- 
mon to  comiDel  them  to  present  their  free  papers  or  be  sold 
as  the  statute  required,  and  they  employed  me  to  defend 
them.  Fortunately,  the  county  commissioners  were  then 
in  session,  and  I  asked  the  court  to  hold  the  cases  open  till 
I  could  appear  before  that  body  and  prove  that  all  my 
clients  were  born  free  and  obtain  free  papers  for  them.  Of 
course  I  could  show  no  statute  authorizing  such  a  proceed- 
ing but  the  justice  very  willingly  granted  me  the  time, 
when  I  marched  m,y  clients  over  to  Colonel  Hamilton's 
oifice,  where  the  commissioners  were  in  session,  and  made 
m}^  application  for  free  papers.  I  made  a  little  speech, 
showing  that  from  the  very  necessitj^  of  the  case  they  must 
have  jurisdiction  and  exercise  it  too,  to  prevent  a  monstrous 
wrong,  which  would  be  a  disgrace  to  both  the  town  and  the 
State.  The  commissioners  allowed  me  to  produce  my  proof, 
which  was  abundant,  and  then  made  the  order  that  the 
clerk  should  issue  the  proper  papers  to  show  that  fact,  when 
immediately  Colonel  Hamilton  set  himself  to  work  and  got 
up  a  most  elaborate  document,  couched  in  the  most  formal 
terms,  sealed  with  the  seal  of  the  court  and  issued  one  to 
each  of  my  clients.  Armed  with  these  documents,  we  re- 
turned to  the  justice's  office,  whereupon  the  justice  decided 
that  those  were  good  enough  free  papers  for  him,  and  im- 
mediately discharged  the  prisoners  and  taxed  the  cost  to 
the  prosecutor. 

Another  incident  that  happened  a  few  years  later  may  be 
worth  relating,  as  it  shows  a  great  change  in  the  position 
occupied  by  the  negro  in  Chicago.  At  that  time  a  very 
considerable  colony  of  colored  men  lived  here  and  among 
them  was  George  White.  He  had  a  very  loud  voice  aiul" 
made  himself  town  crier.  He  was  both  smart  and  am- 
bitious. At  the  same  time  there  lived  in  the  gutters  of 
Chicago,  a  young  man  named  Harper.     He  was  a  man  of 


246      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

liberal  education,  but  had  succumbed  to  the  disease  of 
drunkenness;  had  enlisted  as  a  common  soldier  in  the  army, 
where  he  was  found  to  be  absolutely  incorrigible,  had  been 
drummed  out  of  camp  at  Green  Bay,  whence  he  had  made 
his  way  to  Chicago,  where  he  continued  his  dissipation  and 
subsisted  on  charity  and  by  doing  little  chores  about  the 
town.  Everybody  felt  a  kindly  feeling  toward  Harper,  for 
he  was  learned,  witty  and  amiable,  but  he  was  a  vagrant  of 
the  most  pronounced  description,  and  some  one  caused  his 
arrest  as  a  vagrant.  He  was  convicted  and  condemned  to 
be  sold  for  the  shortest  time  for  wliich  a  bid  could  be  ob- 
tained at  public  auction.  George  AVhite  cried  the  sale 
throughout  the  town,  with  many  commendations  of  the 
goods  to  be  sold.  A  large  concourse  gathered  at  the 
auction  block,  nearly  all  of  whom  had  a  kindly  feeling  for 
Harper,  who  had  got  sobered  up  while  in  confinement,  and 
we  all  appreciated  that  he  was  possessed  of  high  and  keen 
sensibilities  when  sober.  The  constable  offered  the  victim 
for  sale,  and  when  he  called  for  bids  George  White  bid 
twenty-five  cents  for  a  month's  service.  Xo  other  bid  being- 
received  he  was  struck  off  to  the  negro,  who  walked  up 
with  a  satisfied  expression  of  countenance  to  take  posses- 
sion of  the  goods;  but  just  as  George  was  about  to  lay  his 
hand  on  Harper  the  latter  made  a  bolt  to  the  ring  of 
spectators  which  surrounded  the  place,  when  an  opening- 
was  immediately  made  in  it  through  Avhich  he  ran,  when  it 
was  closed  up  before  George  could  pass  through  in  pursuit 
of  his  fleeing  chattel. 

Harper  took  refuge  among  his  friends  who  concealed  him 
and  kept  him  in  hiding  for  a  week  or  two  while  the  pur- 
chaser was  vainly  seeking  him,  when  some  one  gave  him  the 
quarter  back,  for  which  he  disclaimed  ownership,  and  the 
vagrant  reappeared  unreformed  and  pursued  his  old  course 
of  life.  The  disease  had  become  so  fastened  upon  him  that 
it  seemed  absolutely  uncontrollable.  He  actually  sold  his 
body  to  a  doctor  of  whom  he  was  begging  for  half  a  dollar, 
who,  with  the  hope  of  disgusting  him,  offered  the  money 


JUDGE  CATON"S  ADDRESS.  247 

for  his  body  for  dissection,  who  assured  him  that  if  he  gave 
liim  the  money  he  would  freeze  to  death  before  morninf^. 
Harper  eagerly  embraced  the  offer,  actually  signed  the 
deed  for  his  body  after  death,  assuring  the  doctor  that  he 
expected  to  outlive  him.  After  a  number  of  years  he  finallv 
disappeared  from  Chicago.  The  next  we  heard  of  him  in 
i^altimore,  where  with  six  other  reformed  drunkards  he 
formed  the  Washingtonian  society  and  distinguished  liimself 
as  a  lecturer  on  temperance,  the  fame  and  influence  of 
Avhich  fifty  years  ago  spread  throughout  tlie  United  States. 
Through  the  influence  of  that  society  many  drunkards  were 
reformed  and  became  distinguished  lecturers  in  the  temper- 
ance cause. 

Edward  Casey  was  the  onl}'-  lawyer  that  I  distinctly  re- 
member who  joined  us  liero  in  1833,  but  Alexander  N.  Ful- 
lerton  may  have  come  in  that  year.  In  1834  our  bar  was 
augmented  by  the  arrival  of  a  very  considerable  number, 
several  of  whom  became  distinguished,  but  it  is  beyond  my 
present  purpose  to  name  them  now.  For  a  score  of  years 
thereafter  the  number  was  increased  only  by  immigrants, 
but  later  by  native-born  Chicagoans.  How  many,  you 
Icnow  better  than  I  do. 

Xow  it  will  compare  favorably  both  in  numbers  and  ability 
with  any  bar  in  the  republic,  and  as  I  trace  back  the  thread 
of  memory  to  the  very  beginning  I  may  feci  a  just  pride  in 
noting  its  advancement  from  that  time  to  this,  not  only  in 
learning  but  in  reputation.  If  I  contemplate  the  past  with 
great  satisfaction,  I  anticipate  the  future  with  high  hopes. 
I  feel  that  I  may  appropriate  to  myself  some  portion  of  the 
credit  that  may  attach  to  the  bar  of  Chicago,  and  should 
feel  as  a  personal  reproach  any  stigma  which  may  ever  fall 
upon  it.  Eemember,  gentlemen,  that  the  highest  integrity 
can  alone  maintain  that  reputation  which  secures  to  the  bar 
the  public  confidence  which  has  selected  from  our  profes- 
sion so  large  a  proportion  of  the  public  men  who  have 
so  nobly  maintained  the  institutions  of  our  republican  gov- 
ernment.    So  long  as   we  shall  deserve  it,  from  our  ranks 


248  EARLY   BENCH  AND  BAR  OF  ILLINOIS. 

will  be  selected  a  large  proportion  of  those  who  shall  make 
and  those  who  shall  administer  the  laws  of  the  land;  and  I 
may  be  permitted  now  to  wish  this  association  a  long  and 
prosperous  career,  and  its  individual  members  long,  suc- 
cessful and  happy  lives. 

The  appreciation  by  a  later  generation  of  a  somewhat 
active  and  extended  ]irofessional  life  is  the  sweetest  consola- 
tion an  old  man  can  have.     Gentlemen,  I  thank  you. 


WHO  GUIDED  THE  MORMONS  TO  SALT  LAKE. 

A  DESCEIPTIOX    OF    THE    GREAT    SALT     LAKE    COUNTRY    AND    HOW 
IT    BECAME    I>'HABITED    BY    THE  MORMOXS. 

In  the  latter  part  of  ISi-t  I  received  a  copy  of  "  Fremont's 
First  and  Second  Expeditions  to  and  Beyond  the  Kock\^ 
Mountains,"  which  I  read  with  great  interest.  In  his  sec- 
ond expedition  he  gave  an  account  of  the  Great  Salt  Lake, 
now  called  Utah,  which  he  visited  on  his  way  west,  which 
was  the  first  authentic  account  ever  published  of  that  lake 
and  region,  and  on  his  return  he  discovered  the  Utah  Lake, 
which  is  a  fresh  water  lake  lying  about  twenty  miles  south 
of  the  salt  lake  and  which  discharges  its  fresh  water  into  the 
salt  lake,  of  which,  and  the  surrounding  country,  he  also  gave 
an  account. 

He  gave  a  very  good  account  of  his  observations  m.ade  in 
what  may  be  called  the  Utah  Yalley,  which  suggested  the 
great  possibilities  for  the  future  of  a  civilized  settlement  in 
that  valley. 

That  Avas  the  first  session  of  the  Legislature  after  the 
murder  of  Joseph  Smith,  Avhich  had  occurred  in  the  previous 
June.  When  the  Mormons  settled  in  Hancock  county,  they 
were  petted  and  caressed  by  both  political  parties,  as  both 
Avanted  to  secure  their  votes.  The  favors  thus  shoAvered 
upon  them  undoubtedly  made  them  arrogant  and  made  them 
magnify  their  importance  as  a  political  factor  in  the  State, 
and  under  this  influence  some  of  the  Mormons  committed 
acts  of  outrage  upon  the  Gentiles,  as  they  called  eA^erybody 
not  of  their  oAvn  people.  A  portion  of  these  Gentiles  were 
friendly  to  them  and  defended   them  through  thick  and 

(249) 


250       EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

thin;  these  were  called  Jack-mormons;  one  of  whom,  named 
J.  B.  Backenstos,  they  had  elected  to  the  Legislature.  His 
special  business  was  to  look  after  their  interests  in  that 
bod}'",  and  in  the  performance  of  this  service  he  certainly  had 
a  very  dilRcult  task  on  his  hands,  as  they  had  become  as 
generally  odious  as  they  had  been  popular  before,  when 
both  political  parties  were  endeavoring  to  secure  their  votes; 
and  now  they  vied  with  each  other  with  equal  zeal  in  their 
endeavors  to  oppress  them.  A  number  of  the  leading  Mor- 
mons, headed  by  Brigham  Young,  were  at  the  Capitol  to 
assist  and  advise  with  Backenstos  in  his  endeavors,  more  to 
protect  them  against  hostile  legislation  than  to  obtain  an}^ 
favorable  legislation,  which  was  manifestly  impossible. 

In  this  state  of  things  I  met  Backenstos  one  morning  in 
the  rotunda  of  the  State  House,  when  on  my  way  to  the 
Supreme  Court  room,  and  asked  him  how  he  was  getting 
along  in  his  efforts  for  his  Mormon  constituents;  he  replied 
that  things  looked  very  bad;  that  everybody  was  down  on 
them;  that  both  political  parties  were  vieing  with  each  other 
in  their  efforts  to  oppress  them;  that  nobody  would  listen  to 
reason  or  justice  or  even  common  humanity,  and  that  they 
were  already  driven  to  extremities.  I  then  had  Fremont's 
report  under  my  arm.  It  then  first  occurred  to  me  that  the 
Salt  Lake  country,  in  the  midst  of  the  Rocky  mountains, 
would  afford  them  a  secluded  retreat  Avhere  they  could  run 
things  their  own  way  without  interference  from  the  outside 
world  for  the  next  hundred  years,  and  at  his  request  I  gave 
him  the  book  when  I  had  turned  down  the  leaves  at  those 
places  where  the  valley  of  the  Salt  Lake  is  described,  and 
he  took  it  to  his  constituents  with  my  suggestions  for  their 
examination  and  consideration. 

At  the  end  of  perhaps  two  weeks,  he  returned  me  the 
book  Avith  the  thanks  of  his  elders,  who,  he  said,  were  so 
favorably  struck  with  my  suggestion  that  they  had  already 
determined  to  send  an  exploring  party  to  the  valley  of  the 
Salt  Lake  the  next  spring,  who  would  give  it  a  thorough 
exploration,  and  if  they  should  make  a  favorable  report,  they 


WHO  GUIDED  THE  MORMONS  TO  SALT  LAKE.         2")! 

would,  as  soon  as  possible,  remove  their  people  to  and  take 
])ossession  of  that  country. 

This  was  accordingly  done;  a  favorable  report  was  made 
by  the  exploring  party  and  the  removal  was  commenced  and 
prosccutecl  as  rapidh'  as  that  could  be  effected,  under  the 
leadership  of  Brigham  Young.  In  this  exodus  the  great 
bulk  of  the  Mormons  joined,  though  some  of  them  who  did 
not  believe  in  the  polygamy  doctrine  of  Brigham  Young 
refused  to  go,  but  remained  in  the  east  and  formed  a  small 
community  by  themselves,  where  they  and  their  descendants 
still  remain  without  further  persecution. 

About  twenty  years  later,  when  overhauling  a  box  of 
books  for  which  I  could  not  find  room  on  the  shelves  of 
my  library,  I  came  across  this  same  co])y  of  Fremont's 
report,  which  called  to  my  mind  the  incident  above  related, 
and  it  occurred  to  me  that  here  was  an  incident  of  sufficient 
historic  value  to  entitle  it  to  record  among  the  archives  of 
our  State;  so  I  wrote  it  out  on  the  fly-leaf  in  this  copy  of 
Fremont's  report  as  being  the  book  which  first  suggested 
the  removal  of  the  Mormons  to  the  Salt  Lake  Valley,  and 
presented  it  to  the  Chicago  Historical  Societ}^  Every- 
body is  aware  that  the  Mormons  claimed  that  they  were 
first  led  to  that  retreat  by  a  divine  inspiration  or  interposi- 
tion, the  truth  of  which  I  will  not  deny,  but  this  book  was 
the.  instrument  selected  by  the  author  of  the  inspiration  to 
effectuate  his  purpose,  for  it  served  to  select  the  place  and 
to  point  out  the  road  to  it. 

I  should  have  inserted  these  facts,  although  not  strictly 
connected  with  the  judicial  history  of  the  State,  at  an  earlier 
place  in  this  series,  had  I  not  known  that  Judge  Moses,  who 
Avas  the  librarian  in  charge  of  this  book,  Avas  preparing  an 
elaliorate  history  of  this  State,  and  assumed  that  he  would 
deem  it  of  sufficient  importance  to  deserve  a  place  in  its 
history;  but  an  examination  of  that  work  since  its  publica- 
tion shows  that  it  is  not  there  mentioned.  A  note  just  re- 
ceived from  Judge  Moses  informs  me  that  he  recollects  a 
few  years  ago  that  I  called  upon  him,  and  at  my  request  ho 


252      EARLY  BENCH  AND  BAR  OF  ILLINOIS. 

procured  the  book  referred  to  and  read  the  note  on  the  fly- 
leaf to  me;  that  he  intended  to  insert  it  in  his  chapter  on 
the  Mormons,  but  that  it  was  accidentally  omitted;  and  that 
it  will  be  inserted  in  a  revised  edition  of  his  work.  He 
regards  the  incident  of  historic  value  and  worthy  of  especial 
mention. 

Chicago,  April  19,  1893. 


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UNIVERSITY  OF  ILLINOIS-URBANA 

B.C366C  COOS 

EARLY  BENCH  AND  BAR  OF  ILLINOIS.  CHGO 


3  0112  025405215 


1.    * 


